G.R. No.

L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA
ALMARIO, respondents.
This case comes up from the Court of Appeals which held
the petitioner herein, Fausto Barredo, liable in damages
for the death of Faustino Garcia caused by the negligence
of Pedro Fontanilla, a taxi driver employed by said Fausto
Barredo.
At about half past one in the morning of May 3, 1936, on
the road between Malabon and Navotas, Province of Rizal,
there was a head-on collision between a taxi of the Malate
Taxicab driven by Pedro Fontanilla and a carretela guided
by Pedro Dimapalis. The carretela was overturned, and
one of its passengers, 16-year-old boy Faustino Garcia,
suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of
First Instance of Rizal, and he was convicted and
sentenced to an indeterminate sentence of one year and
one day to two years of prision correccional. The court in
the criminal case granted the petition that the right to
bring a separate civil action be reserved. The Court of
Appeals affirmed the sentence of the lower court in the
criminal case. Severino Garcia and Timotea Almario,
parents of the deceased on March 7, 1939, brought an
action in the Court of First Instance of Manila against
Fausto Barredo as the sole proprietor of the Malate
Taxicab and employer of Pedro Fontanilla. On July 8, 1939,
the Court of First Instance of Manila awarded damages in
favor of the plaintiffs for P2,000 plus legal interest from
the date of the complaint. This decision was modified by
the Court of Appeals by reducing the damages to P1,000
with legal interest from the time the action was instituted.
It is undisputed that Fontanilla 's negligence was the
cause of the mishap, as he was driving on the wrong side
of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's
employer. There is proof that he exercised the
diligence of a good father of a family to prevent
damage. (See p. 22, appellant's brief.) In fact it is
shown he was careless in employing Fontanilla
who had been caught several times for violation
of the Automobile Law and speeding (Exhibit A)
violation which appeared in the records of the
Bureau of Public Works available to be public and
to himself. Therefore, he must indemnify plaintiffs
under the provisions of article 1903 of the Civil
Code.
The main theory of the defense is that the liability of
Fausto Barredo is governed by the Revised Penal Code;
hence, his liability is only subsidiary, and as there has
been no civil action against Pedro Fontanilla, the person
criminally liable, Barredo cannot be held responsible in the
case. The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner
is being sued for his failure to exercise all the
diligence of a good father of a family in the
selection and supervision of Pedro Fontanilla to
prevent damages suffered by the respondents. In
other words, The Court of Appeals insists on
applying in the case article 1903 of the Civil
Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This
fact makes said article to a civil liability arising
from a crime as in the case at bar simply
because Chapter II of Title 16 of Book IV of the
Civil Code, in the precise words of article 1903 of
the Civil Code itself, is applicable only to "those
(obligations) arising from wrongful or negligent
acts or commission not punishable by law.
The gist of the decision of the Court of Appeals is
expressed thus:

... We cannot agree to the defendant's

contention. The liability sought to be imposed
upon him in this action is not a civil obligation
arising from a felony or a misdemeanor (the
crime of Pedro Fontanilla,), but an obligation
imposed in article 1903 of the Civil Code by
reason of his negligence in the selection or
supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs
may bring this separate civil action against Fausto
Barredo, thus making him primarily and directly,
responsible under article 1903 of the Civil Code as an
employer of Pedro Fontanilla. The defendant maintains
that Fontanilla's negligence being punishable by the Penal
Code, his (defendant's) liability as an employer is only
subsidiary, according to said Penal code, but Fontanilla
has not been sued in a civil action and his property has
not been exhausted. To decide the main issue, we must
cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos,
or crimes under the Penal Code and fault or negligence
under articles 1902-1910 of the Civil Code. This should be
done, because justice may be lost in a labyrinth, unless
principles and remedies are distinctly envisaged.
Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists
and we are likewise guided by the decisions of this Court
in previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme
Tribunal of Spain.
Authorities support the proposition that a quasi-delict or
"culpa aquiliana " is a separate legal institution under the
Civil Code with a substantivity all its own, and individuality
that is entirely apart and independent from delict or
crime. Upon this principle and on the wording and spirit
article 1903 of the Civil Code, the primary and direct
responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised
Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from
contracts and quasi-contracts, and from acts and
omissions which are unlawful or in which any
kind of fault or negligence intervenes.
xxx

xxx

xxx

ART. 1092. Civil obligations arising from felonies

or misdemeanors shall be governed by the
provisions of the Penal Code.
ART. 1093. Those which are derived from acts or
omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to
the provisions of Chapter II, Title XVI of this book.
xxx

xxx

xxx

ART 1902. Any person who by an act or omission

causes damage to another by his fault or
negligence shall be liable for the damage so
done.
ART. 1903. The obligation imposed by the next
preceding article is enforcible, not only for
personal acts and omissions, but also for those of
persons for whom another is responsible.
The father and in, case of his death or incapacity,
the mother, are liable for any damages caused
by the minor children who live with them.
Guardians are liable for damages done by minors
or incapacitated persons subject to their
authority and living with them.

Owners or directors of an establishment or

business are equally liable for any damages
caused by their employees while engaged in the
branch of the service in which employed, or on
occasion of the performance of their duties.
The State is subject to the same liability when it
acts through a special agent, but not if the
damage shall have been caused by the official
upon whom properly devolved the duty of doing
the act performed, in which case the provisions
of the next preceding article shall be applicable.
Finally, teachers or directors of arts trades are
liable for any damages caused by their pupils or
apprentices while they are under their custody.
The liability imposed by this article shall cease in
case the persons mentioned therein prove that
they are exercised all the diligence of a good
father of a family to prevent the damage.
ART. 1904. Any person who pays for damage
caused by his employees may recover from the
latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of
felony. Every person criminally liable for a
felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain
cases. The exemption from criminal liability
established in subdivisions 1, 2, 3, 5, and 6 of
article 12 and in subdivision 4 of article 11 of this
Code does not include exemption from civil
liability, which shall be enforced to the following
rules:
First. In cases of subdivision, 1, 2 and 3 of article
12 the civil liability for acts committed by any
imbecile or insane person, and by a person under
nine years of age, or by one over nine but under
fifteen years of age, who has acted without
discernment shall devolve upon those having
such person under their legal authority or
control, unless it appears that there was no fault
or negligence on their part.
Should there be no person having such insane,
imbecile or minor under his authority, legal
guardianship, or control, or if such person be
insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting
property exempt from execution, in accordance
with the civil law.
Second. In cases falling within subdivision 4 of
article 11, the person for whose benefit the harm
has been prevented shall be civilly liable in
proportion to the benefit which they may have
received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares can not be equitably
determined, even approximately, or when the liability also
attaches to the Government, or to the majority of the
inhabitants of the town, and, in all events, whenever the
damage has been caused with the consent of the
authorities or their agents, indemnification shall be made
in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article
12, the persons using violence or causing the fear shall be
primarily liable and secondarily, or, if there be no such
persons, those doing the act shall be liable, saving always
to the latter that part of their property exempt from
execution.

ART. 102. Subsidiary civil liability of innkeepers,

tavern keepers and proprietors of establishment.
In default of persons criminally liable,
innkeepers, tavern keepers, and any other
persons or corporation shall be civilly liable for
crimes committed in their establishments, in all
cases where a violation of municipal ordinances
or some general or special police regulation shall
have been committed by them or their
employees.
Innkeepers are also subsidiarily liable for the
restitution of goods taken by robbery or theft
within their houses lodging therein, or the
person, or for the payment of the value thereof,
provided that such guests shall have notified in
advance the innkeeper himself, or the person
representing him, of the deposit of such goods
within the inn; and shall furthermore have
followed the directions which such innkeeper or
his representative may have given them with
respect to the care of and vigilance over such
goods. No liability shall attach in case of robbery
with violence against or intimidation against or
intimidation of persons unless committed by the
innkeeper's employees.
ART. 103. Subsidiary civil liability of other
persons. The subsidiary liability established in
the next preceding article shall also apply to
employers, teachers, persons, and corporations
engaged in any kind of industry for felonies
committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of
their duties.
xxx

xxx

xxx

ART. 365. Imprudence and negligence. Any

person who, by reckless imprudence, shall
commit any act which, had it been intentional,
would constitute a grave felony, shall suffer the
penalty of arresto mayor in its maximum period
to prision correccional in its minimum period; if it
would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and
medium periods shall be imposed.
Any person who, by simple imprudence or
negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer
the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a
less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of
the Civil Code seem to be broad enough to cover the
driver's negligence in the instant case, nevertheless
article 1093 limits cuasi-delitos to acts or omissions "not
punishable by law." But inasmuch as article 365 of the
Revised Penal Code punishes not only reckless but even
simple imprudence or negligence, the fault or negligence
under article 1902 of the Civil Code has apparently been
crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study
shows that such a concurrence of scope in regard to
negligent acts does not destroy the distinction between
the civil liability arising from a crime and the responsibility
for cuasi-delitos or culpa extra-contractual. The same
negligent act causing damages may produce civil liability
arising from a crime under article 100 of the Revised Penal
Code, or create an action for cuasi-delito or culpa extracontractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extracontractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors
being the Lex Aquilia in the Roman Law. In fact, in Spanish
legal terminology, this responsibility is often referred to as
culpa aquiliana. The Partidas also contributed to the
genealogy of the present fault or negligence under the
Civil Code; for instance, Law 6, Title 15, of Partida 7, says:

"Tenudo es de fazer emienda, porque, como quier que el

non fizo a sabiendas en dao al otro, pero acaescio por su
culpa."
The distinctive nature of cuasi-delitos survives in the Civil
Code. According to article 1089, one of the five sources of
obligations is this legal institution of cuasi-delito or culpa
extra-contractual: "los actos . . . en que intervenga
cualquier genero de culpa o negligencia." Then article
1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning
articles 1902-0910. This portion of the Civil Code is
exclusively devoted to the legal institution of culpa
aquiliana.
Some of the differences between crimes under the Penal
Code and the culpa aquiliana or cuasi-delito under the
Civil Code are:
1. That crimes affect the public interest, while cuasidelitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects
the criminal act, while the Civil Code, by means of
indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because
the former are punished only if there is a penal law clearly
covering them, while the latter, cuasi-delitos, include all
acts in which "any king of fault or negligence intervenes."
However, it should be noted that not all violations of the
penal law produce civil responsibility, such as begging in
contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See
Colin and Capitant, "Curso Elemental de Derecho Civil,"
Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the
separate existence of quasi-delicts and the employer's
primary and direct liability under article 1903 of the Civil
Code.
Dorado Montero in his essay on "Responsibilidad" in the
"Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad
civil abarca diversos aspectos y comprende a
diferentes personas. Asi, existe una
responsabilidad civil propiamente dicha, que en
ningun casl lleva aparejada responsabilidad
criminal alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo delito
o falta."
The juridical concept of civil responsibility has
various aspects and comprises different persons.
Thus, there is a civil responsibility, properly
speaking, which in no case carries with it any
criminal responsibility, and another which is a
necessary consequence of the penal liability as a
result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the
following case: There had been a collision between two
trains belonging respectively to the Ferrocarril Cantabrico
and the Ferrocarril del Norte. An employee of the latter
had been prosecuted in a criminal case, in which the
company had been made a party as subsidiarily
responsible in civil damages. The employee had been
acquitted in the criminal case, and the employer, the
Ferrocarril del Norte, had also been exonerated. The
question asked was whether the Ferrocarril Cantabrico
could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp.
511-513):
Quedando las cosas asi, a proposito de la
realidad pura y neta de los hechos, todavia
menos parece sostenible que exista cosa
juzgada acerca de la obligacion civil de
indemnizar los quebrantos y menoscabos

inferidos por el choque de los trenes. El titulo en

que se funda la accion para demandar el
resarcimiento, no puede confundirse con las
responsabilidades civiles nacidas de delito,
siquiera exista en este, sea el cual sea, una culpa
rodeada de notas agravatorias que motivan
sanciones penales, mas o menos severas. La
lesion causada por delito o falta en los derechos
civiles, requiere restituciones, reparaciones o
indemnizaciones, que cual la pena misma ataen
al orden publico; por tal motivo vienen
encomendadas, de ordinario, al Ministerio Fiscal;
y claro es que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles para
pedir indemnizacion.
Estas, para el caso actual (prescindiendo de
culpas contractuales, que no vendrian a cuento y
que tiene otro regimen), dimanan, segun el
articulo 1902 del Codigo Civil, de toda accion u
omision, causante de daos o perjuicios, en que
intervenga culpa o negligencia. Es trivial que
acciones semejantes son ejercitadas ante los
Tribunales de lo civil cotidianamente, sin que la
Justicia punitiva tenga que mezclarse en los
asuntos. Los articulos 18 al 21 y 121 al 128 del
Codigo Penal, atentos al espiritu y a los fines
sociales y politicos del mismo, desenvuelven y
ordenan la materia de responsabilidades
civiles nacidas de delito, en terminos separados
del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedentes
legislativos del Corpus Juris. Seria intempestivo
un paralelo entre aquellas ordenaciones, y la de
la obligacion de indemnizar a titulo de culpa civil;
pero viene al caso y es necesaria una de las
diferenciaciones que en el tal paralelo se
notarian.
Los articulos 20 y 21 del Codigo Penal, despues
de distribuir a su modo las responsabilidades
civiles, entre los que sean por diversos conceptos
culpables del delito o falta, las hacen extensivas
a las empresas y los establecimientos al servicio
de los cuales estan los delincuentes; pero con
caracter subsidiario, o sea, segun el texto
literal, en defecto de los que sean responsables
criminalmente. No coincide en ello el Codigo
Civil, cuyo articulo 1903, dice; La obligacion que
impone el articulo anterior es exigible, no solo
por los actos y omisiones propios, sino por los de
aquellas personas de quienes se debe responder;
personas en la enumeracion de las cuales figuran
los dependientes y empleados de los
establecimientos o empresas, sea por actos del
servicio, sea con ocasion de sus funciones. Por
esto acontece, y se observa en la jurisprudencia,
que las empresas, despues de intervenir en las
causas criminales con el caracter subsidiario de
su responsabilidad civil por razon del delito, son
demandadas y condenadas directa y
aisladamente, cuando se trata de la obligacion,
ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta
obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre
justicia punitiva y tribunales de lo civil, de suerte
que tienen unos y otros normas de fondo en
distintos cuerpos legales, y diferentes modos de
proceder, habiendose, por aadidura, abstenido
de asistir al juicio criminal la Compaia del
Ferrocarril Cantabrico, que se reservo ejercitar
sus acciones, parece innegable que la de
indemnizacion por los daos y perjuicios que le
irrogo el choque, no estuvo sub judice ante el
Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21
de marzo. Aun cuando el veredicto no hubiese
sido de inculpabilidad, mostrose mas arriba, que
tal accion quedaba legitimamente reservada
para despues del proceso; pero al declararse que

no existio delito, ni responsabilidad dimanada de

delito, materia unica sobre que tenian
jurisdiccion aquellos juzgadores, se redobla el
motivo para la obligacion civil ex lege, y se
patentiza mas y mas que la accion para pedir su
cumplimiento permanece incolume, extraa a
la cosa juzgada.
As things are, apropos of the reality pure and
simple of the facts, it seems less tenable that
there should beres judicata with regard to the
civil obligation for damages on account of the
losses caused by the collision of the trains. The
title upon which the action for reparation is
based cannot be confused with the civil
responsibilities born of a crime, because there
exists in the latter, whatever each nature,
a culpasurrounded with aggravating aspects
which give rise to penal measures that are more
or less severe. The injury caused by a felony or
misdemeanor upon civil rights requires
restitutions, reparations, or indemnifications
which, like the penalty itself, affect public order;
for this reason, they are ordinarily entrusted to
the office of the prosecuting attorney; and it is
clear that if by this means the losses and
damages are repaired, the injured party no
longer desires to seek another relief; but this
coincidence of effects does not eliminate the
peculiar nature of civil actions to ask for
indemnity.
Such civil actions in the present case (without
referring to contractual faults which are not
pertinent and belong to another scope) are
derived, according to article 1902 of the Civil
Code, from every act or omission causing losses
and damages in which culpa or negligence
intervenes. It is unimportant that such actions
are every day filed before the civil courts without
the criminal courts interfering therewith. Articles
18 to 21 and 121 to 128 of the Penal Code,
bearing in mind the spirit and the social and
political purposes of that Code, develop and
regulate the matter of civil responsibilities arising
from a crime, separately from the regime under
common law, of culpa which is known
as aquiliana, in accordance with legislative
precedent of the Corpus Juris. It would be
unwarranted to make a detailed comparison
between the former provisions and that
regarding the obligation to indemnify on account
of civil culpa; but it is pertinent and necessary to
point out to 2
Articles 20 and 21 of the Penal Code, after
distriburing in their own way the civil
responsibilities among those who, for different
reasons, are guilty of felony or misdemeanor,
make such civil responsibilities applicable to
enterprises and establishments for which the
guilty parties render service, but with subsidiary
character, that is to say, according to the
wording of the Penal Code, in default of those
who are criminally responsible. In this regard, the
Civil Code does not coincide because article 1903
says: "The obligation imposed by the next
preceding article is demandable, not only for
personal acts and omissions, but also for those of
persons for whom another is responsible."
Among the persons enumerated are the
subordinates and employees of establishments or
enterprises, either for acts during their service or
on the occasion of their functions. It is for this
reason that it happens, and it is so observed in
judicial decisions, that the companies or
enterprises, after taking part in the criminal
cases because of their subsidiary civil
responsibility by reason of the crime, are sued
and sentenced directly and separately with
regard to theobligation, before the civil courts.
Seeing that the title of this obligation is different,
and the separation between punitive justice and

the civil courts being a true postulate of our

judicial system, so that they have different
fundamental norms in different codes, as well as
different modes of procedure, and inasmuch as
the Compaa del Ferrocarril Cantabrico has
abstained from taking part in the criminal case
and has reserved the right to exercise its actions,
it seems undeniable that the action for
indemnification for the losses and damages
caused to it by the collision was not sub
judice before the Tribunal del Jurado, nor was it
the subject of a sentence, but it remained intact
when the decision of March 21 was rendered.
Even if the verdict had not been that of acquittal,
it has already been shown that such action had
been legitimately reserved till after the criminal
prosecution; but because of the declaration of
the non-existence of the felony and the nonexistence of the responsibility arising from the
crime, which was the sole subject matter upon
which the Tribunal del Juradohad jurisdiction,
there is greater reason for the civil obligation ex
lege, and it becomes clearer that the action for
its enforcement remain intact and is not res
judicata.
Laurent, a jurist who has written a monumental work on
the French Civil Code, on which the Spanish Civil Code is
largely based and whose provisions on cuasidelito or culpa extra-contractual are similar to those of the
Spanish Civil Code, says, referring to article 1384 of the
French Civil Code which corresponds to article 1903,
Spanish Civil Code:
The action can be brought directly against the
person responsible (for another), without
including the author of the act. The action
against the principal is accessory in the sense
that it implies the existence of a prejudicial act
committed by the employee, but it is not
subsidiary in the sense that it can not be
instituted till after the judgment against the
author of the act or at least, that it is subsidiary
to the principal action; the action for
responsibility (of the employer) is in itself a
principal action. (Laurent, Principles of French
Civil Law, Spanish translation, Vol. 20, pp. 734735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado"
(Vol. 4, pp. 429, 430), declares that the responsibility of
the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el
articulo 1903 por las acciones u omisiones de
aquellas personas por las que se debe responder,
es subsidiaria? es principal? Para contestar a esta
pregunta es necesario saber, en primer lugar, en
que se funda el precepto legal. Es que realmente
se impone una responsabilidad por una falta
ajena? Asi parece a primera vista; pero
semejante afirmacion seria contraria a la justicia
y a la maxima universal, segun la que las faltas
son personales, y cada uno responde de aquellas
que le son imputables. La responsabilidad de que
tratamos se impone con ocasion de un delito o
culpa, pero no por causa de ellos, sino por causa
del causi delito, esto es, de la imprudencia o de
la negligencia del padre, del tutor, del dueo o
director del establecimiento, del maestro, etc.
Cuando cualquiera de las personas que enumera
el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan
un dao, la ley presume que el padre, el tutor, el
maestro, etc., han cometido una falta de
negligencia para prevenir o evitar el dao. Esta
falta es la que la ley castiga. No hay, pues,
responsabilidad por un hecho ajeno, sino en la
apariencia; en realidad la responsabilidad se
exige por un hecho propio. La idea de que esa
responsabilidad sea subsidiaria es, por lo tanto,
completamente inadmisible.

Question No. 1. Is the responsibility declared in

article 1903 for the acts or omissions of those
persons for who one is responsible, subsidiary or
principal? In order to answer this question it is
necessary to know, in the first place, on what the
legal provision is based. Is it true that there is a
responsibility for the fault of another person? It
seems so at first sight; but such assertion would
be contrary to justice and to the universal maxim
that all faults are personal, and that everyone is
liable for those faults that can be imputed to him.
The responsibility in question is imposed on the
occasion of a crime or fault, but not because of
the same, but because of the cuasi-delito, that is
to say, the imprudence or negligence of the
father, guardian, proprietor or manager of the
establishment, of the teacher, etc. Whenever
anyone of the persons enumerated in the article
referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the
law presumes that the father, guardian, teacher,
etc. have committed an act of negligence in not
preventing or avoiding the damage. It is this fault
that is condemned by the law. It is, therefore,
only apparent that there is a responsibility for the
act of another; in reality the responsibility
exacted is for one's own act. The idea that such
responsibility is subsidiary is, therefore,
completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y
Jurisprudencia, Referentes al Codigo Civil Espaol," says in
Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque
se responde solo de su propia culpa, doctrina del
articulo 1902; mas por excepcion, se responde
de la ajena respecto de aquellas personas con las
que media algun nexo o vinculo, que motiva o
razona la responsabilidad. Esta responsabilidad,
es directa o es subsidiaria? En el orden penal, el
Codigo de esta clase distingue entre menores e
incapacitados y los demas, declarando directa la
primera (articulo 19) y subsidiaria la segunda
(articulos 20 y 21); pero en el orden civil, en el
caso del articulo 1903, ha de entenderse directa,
por el tenor del articulo que impone la
responsabilidad precisamente "por los actos de
aquellas personas de quienes se deba
responder."
That is to say, one is not responsible for the acts
of others, because one is liable only for his own
faults, this being the doctrine of article 1902; but,
by exception, one is liable for the acts of those
persons with whom there is a bond or tie which
gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the order of
the penal law, the Penal Code distinguishes
between minors and incapacitated persons on
the one hand, and other persons on the other,
declaring that the responsibility for the former is
direct (article 19), and for the latter, subsidiary
(articles 20 and 21); but in the scheme of the
civil law, in the case of article 1903, the
responsibility should be understood as direct,
according to the tenor of that articles, for
precisely it imposes responsibility "for the acts of
those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of
Spain, that court has upheld the principles above set
forth: that a quasi-delict or culpa extra-contractual is a
separate and distinct legal institution, independent from
the civil responsibility arising from criminal liability, and
that an employer is, under article 1903 of the Civil Code,
primarily and directly responsible for the negligent acts of
his employee.
One of the most important of those Spanish decisions is
that of October 21, 1910. In that case, Ramon Lafuente
died as the result of having been run over by a street car
owned by the "compaia Electric Madrilea de Traccion."

The conductor was prosecuted in a criminal case but he

was acquitted. Thereupon, the widow filed a civil action
against the street car company, paying for damages in
the amount of 15,000 pesetas. The lower court awarded
damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of
the Civil Code because by final judgment the nonexistence of fault or negligence had been declared. The
Supreme Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso
se funda en el equivocado supuesto de que el
Tribunal a quo, al condonar a la compaia
Electrica Madrilea al pago del dao causado con
la muerte de Ramon La fuente Izquierdo,
desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa
criminal que se siguio por el mismo hecho,
cuando es lo cierto que de este han conocido las
dos jurisdicciones bajo diferentes as pectos, y
como la de lo criminal declrao dentro de los
limites de su competencia que el hecho de que
se trata no era constitutivo de delito por no
haber mediado descuido o negligencia graves, lo
que no excluye, siendo este el unico fundamento
del fallo absolutorio, el concurso de la culpa o
negligencia no califacadas, fuente de
obligaciones civiles segun el articulo 1902 del
Codigo, y que alcanzan, segun el 1903, netre
otras perosnas, a los Directores de
establecimientos o empresas por los daos
causados por sus dependientes en determinadas
condiciones, es manifesto que la de lo civil, al
conocer del mismo hehco baho este ultimo
aspecto y al condenar a la compaia recurrente a
la indemnizacion del dao causado por uno de
sus empleados, lejos de infringer los
mencionados textos, en relacion con el articulo
116 de la Ley de Enjuciamiento Criminal, se ha
atenido estrictamente a ellos, sin invadir
atribuciones ajenas a su jurisdiccion propia, ni
contrariar en lo mas minimo el fallo recaido en la
causa.
Considering that the first ground of the appeal is
based on the mistaken supposition that the trial
court, in sentencing the Compaia Madrilea to
the payment of the damage caused by the death
of Ramon Lafuente Izquierdo, disregards the
value and juridical effects of the sentence of
acquittal rendered in the criminal case instituted
on account of the same act, when it is a fact that
the two jurisdictions had taken cognizance of the
same act in its different aspects, and as the
criminal jurisdiction declared within the limits of
its authority that the act in question did not
constitute a felony because there was no grave
carelessness or negligence, and this being the
only basis of acquittal, it does no exclude the coexistence of fault or negligence which is not
qualified, and is a source of civil obligations
according to article 1902 of the Civil Code,
affecting, in accordance with article 1903, among
other persons, the managers of establishments
or enterprises by reason of the damages caused
by employees under certain conditions, it is
manifest that the civil jurisdiccion in taking
cognizance of the same act in this latter aspect
and in ordering the company, appellant herein,
to pay an indemnity for the damage caused by
one of its employees, far from violating said legal
provisions, in relation with article 116 of the Law
of Criminal Procedure, strictly followed the same,
without invading attributes which are beyond its
own jurisdiction, and without in any way
contradicting the decision in that cause.
(Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case,
either separately or with the street car company. This is
precisely what happens in the present case: the driver,

Fontanilla, has not been sued in a civil action, either alone

or with his employer.
Second. That the conductor had been acquitted of grave
criminal negligence, but the Supreme Tribunal of Spain
said that this did not exclude the co-existence of fault or
negligence, which is not qualified, on the part of the
conductor, under article 1902 of the Civil Code. In the
present case, the taxi driver was found guilty of criminal
negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been
held primarily liable for civil damages, and Barredo would
have been held subsidiarily liable for the same. But the
plaintiffs are directly suing Barredo, on his primary
responsibility because of his own presumed negligence
which he did not overcome under article 1903. Thus,
there were two liabilities of Barredo: first, the subsidiary
one because of the civil liability of the taxi driver arising
from the latter's criminal negligence; and, second,
Barredo's primary liability as an employer under article
1903. The plaintiffs were free to choose which course to
take, and they preferred the second remedy. In so doing,
they were acting within their rights. It might be observed
in passing, that the plaintiff choose the more expeditious
and effective method of relief, because Fontanilla was
either in prison, or had just been released, and besides,
he was probably without property which might be seized
in enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October
21, 1910, the employer was held liable civilly,
notwithstanding the acquittal of the employee (the
conductor) in a previous criminal case, with greater
reason should Barredo, the employer in the case at bar,
be held liable for damages in a civil suit filed against him
because his taxi driver had been convicted. The degree of
negligence of the conductor in the Spanish case cited was
less than that of the taxi driver, Fontanilla, because the
former was acquitted in the previous criminal case while
the latter was found guilty of criminal negligence and was
sentenced to an indeterminate sentence of one year and
one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar
to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated
February 14, 1919, an action was brought against a
railroad company for damages because the station agent,
employed by the company, had unjustly andfraudulently,
refused to deliver certain articles consigned to the
plaintiff. The Supreme Court of Spain held that this action
was properly under article 1902 of the Civil Code, the
court saying:
Considerando que la sentencia discutida
reconoce, en virtud de los hechos que consigna
con relacion a las pruebas del pleito: 1., que las
expediciones facturadas por la compaia
ferroviaria a la consignacion del actor de las
vasijas vacias que en su demanda relacionan
tenian como fin el que este las devolviera a sus
remitentes con vinos y alcoholes; 2., que
llegadas a su destino tales mercanias no se
quisieron entregar a dicho consignatario por el
jefe de la estacion sin motivo justificado y con
intencion dolosa, y 3., que la falta de entrega de
estas expediciones al tiempo de reclamarlas el
demandante le originaron daos y perjuicios en
cantidad de bastante importancia como
expendedor al por mayor que era de vinos y
alcoholes por las ganancias que dejo de obtener
al verse privado de servir los pedidos que se le
habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad
de estimar los cuatro motivos que integran este
recurso, porque la demanda inicial del pleito a
que se contrae no contiene accion que nazca del
incumplimiento del contrato de transporte, toda
vez que no se funda en el retraso de la llegada
de las mercancias ni de ningun otro vinculo
contractual entre las partes contendientes,
careciendo, por tanto, de aplicacion el articulo

371 del Codigo de Comercio, en que

principalmente descansa el fallo recurrido, sino
que se limita a pedir la reparaction de los daos
y perjuicios producidos en el patrimonio del actor
por la injustificada y dolosa negativa del
porteador a la entrega de las mercancias a su
nombre consignadas, segun lo reconoce la
sentencia, y cuya responsabilidad esta
claramente sancionada en el articulo 1902 del
Codigo Civil, que obliga por el siguiente a la
Compaia demandada como ligada con el
causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question
recognizes, in virtue of the facts which it
declares, in relation to the evidence in the case:
(1) that the invoice issued by the railroad
company in favor of the plaintiff contemplated
that the empty receptacles referred to in the
complaint should be returned to the consignors
with wines and liquors; (2) that when the said
merchandise reached their destination, their
delivery to the consignee was refused by the
station agent without justification and
with fraudulent intent, and (3) that the lack of
delivery of these goods when they were
demanded by the plaintiff caused him losses and
damages of considerable importance, as he was
a wholesale vendor of wines and liquors and he
failed to realize the profits when he was unable
to fill the orders sent to him by the consignors of
the receptacles:
Considering that upon this basis there is need of
upholding the four assignments of error, as the
original complaint did not contain any cause of
action arising from non-fulfillment of a contract of
transportation, because the action was not based
on the delay of the goods nor on any contractual
relation between the parties litigant and,
therefore, article 371 of the Code of Commerce,
on which the decision appealed from is based, is
not applicable; but it limits to asking for
reparation for losses and damages produced on
the patrimony of the plaintiff on account of the
unjustified and fraudulent refusal of the carrier to
deliver the goods consigned to the plaintiff as
stated by the sentence, and the carrier's
responsibility is clearly laid down in article 1902
of the Civil Code which binds, in virtue of the
next article, the defendant company, because
the latter is connected with the person who
caused the damage by relations of economic
character and by administrative hierarchy.
(Emphasis supplied.)
The above case is pertinent because it shows that the
same act may come under both the Penal Code and the
Civil Code. In that case, the action of the agent was
unjustified and fraudulent and therefore could have been
the subject of a criminal action. And yet, it was held to be
also a proper subject of a civil action under article 1902 of
the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this
Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific
Co. (7 Phil., 359, 362-365 [year 1907]), the trial court
awarded damages to the plaintiff, a laborer of the
defendant, because the latter had negligently failed to
repair a tramway in consequence of which the rails slid off
while iron was being transported, and caught the plaintiff
whose leg was broken. This Court held:
It is contended by the defendant, as its first
defense to the action that the necessary
conclusion from these collated laws is that the
remedy for injuries through negligence lies only
in a criminal action in which the official criminally
responsible must be made primarily liable and
his employer held only subsidiarily to him.

According to this theory the plaintiff should have

procured the arrest of the representative of the
company accountable for not repairing the track,
and on his prosecution a suitable fine should
have been imposed, payable primarily by him
and secondarily by his employer.
This reasoning misconceived the plan of the
Spanish codes upon this subject. Article 1093 of
the Civil Code makes obligations arising from
faults or negligence not punished by the law,
subject to the provisions of Chapter II of Title XVI.
Section 1902 of that chapter reads:
"A person who by an act or omission
causes damage to another when there is
fault or negligence shall be obliged to
repair the damage so done.
"SEC. 1903. The obligation imposed by
the preceeding article is demandable,
not only for personal acts and
omissions, but also for those of the
persons for whom they should be
responsible.
"The father, and on his death or
incapacity, the mother, is liable for the
damages caused by the minors who live
with them.
xxx

xxx

xxx

"Owners or directors of an
establishment or enterprise are equally
liable for the damages caused by their
employees in the service of the
branches in which the latter may be
employed or in the performance of their
duties.
xxx

xxx

xxx

"The liability referred to in this article

shall cease when the persons mentioned
therein prove that they employed all the
diligence of a good father of a family to
avoid the damage."
As an answer to the argument urged in this
particular action it may be sufficient to point out
that nowhere in our general statutes is the
employer penalized for failure to provide or
maintain safe appliances for his workmen. His
obligation therefore is one 'not punished by the
laws' and falls under civil rather than criminal
jurisprudence. But the answer may be a broader
one. We should be reluctant, under any
conditions, to adopt a forced construction of
these scientific codes, such as is proposed by the
defendant, that would rob some of these articles
of effect, would shut out litigants against their
will from the civil courts, would make the
assertion of their rights dependent upon the
selection for prosecution of the proper criminal
offender, and render recovery doubtful by reason
of the strict rules of proof prevailing in criminal
actions. Even if these articles had always stood
alone, such a construction would be
unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though never in actual force in
these Islands, was formerly given a suppletory or
explanatory effect. Under article 111 of this law,
both classes of action, civil and criminal, might
be prosecuted jointly or separately, but while the
penal action was pending the civil was
suspended. According to article 112, the penal
action once started, the civil remedy should be
sought therewith, unless it had been waived by
the party injured or been expressly reserved by

him for civil proceedings for the future. If the civil

action alone was prosecuted, arising out of a
crime that could be enforced only on private
complaint, the penal action thereunder should be
extinguished. These provisions are in harmony
with those of articles 23 and 133 of our Penal
Code on the same subject.
An examination of this topic might be carried
much further, but the citation of these articles
suffices to show that the civil liability was not
intended to be merged in the criminal nor even
to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly
liable for a negligent act or omission, it is not
required that the injured party should seek out a
third person criminally liable whose prosecution
must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the
responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against
his employees only while they are in process of
prosecution, or in so far as they determine the
existence of the criminal act from which liability
arises, and his obligation under the civil law and
its enforcement in the civil courts is not barred
thereby unless by the election of the injured
person. Inasmuch as no criminal proceeding had
been instituted, growing our of the accident in
question, the provisions of the Penal Code can
not affect this action. This construction renders it
unnecessary to finally determine here whether
this subsidiary civil liability in penal actions has
survived the laws that fully regulated it or has
been abrogated by the American civil and
criminal procedure now in force in the
Philippines.
The difficulty in construing the articles of the
code above cited in this case appears from the
briefs before us to have arisen from the
interpretation of the words of article 1093, "fault
or negligence not punished by law," as applied to
the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has
been shown that the liability of an employer
arising out of his relation to his employee who is
the offender is not to be regarded as derived
from negligence punished by the law, within the
meaning of articles 1902 and 1093. More than
this, however, it cannot be said to fall within the
class of acts unpunished by the law, the
consequence of which are regulated by articles
1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are
understood to be those not growing out of preexisting duties of the parties to one another. But
where relations already formed give rise to
duties, whether springing from contract or quasi
contract, then breaches of those duties are
subject to articles 1101, 1103, and 1104 of the
same code. A typical application of this
distinction may be found in the consequences of
a railway accident due to defective machinery
supplied by the employer. His liability to his
employee would arise out of the contract of
employment, that to the passengers out of the
contract for passage, while that to the injured
bystander would originate in the negligent act
itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the
mother of the 8 of 9-year-old child Salvador Bona brought
a civil action against Moreta to recover damages resulting
from the death of the child, who had been run over by an
automobile driven and managed by the defendant. The
trial court rendered judgment requiring the defendant to
pay the plaintiff the sum of P1,000 as indemnity: This
Court in affirming the judgment, said in part:
If it were true that the defendant, in coming from
the southern part of Solana Street, had to stop

his auto before crossing Real Street, because he

had met vehicles which were going along the
latter street or were coming from the opposite
direction along Solana Street, it is to be believed
that, when he again started to run his auto
across said Real Street and to continue its way
along Solana Street northward, he should have
adjusted the speed of the auto which he was
operating until he had fully crossed Real Street
and had completely reached a clear way on
Solana Street. But, as the child was run over by
the auto precisely at the entrance of Solana
Street, this accident could not have occurred if
the auto had been running at a slow speed, aside
from the fact that the defendant, at the moment
of crossing Real Street and entering Solana
Street, in a northward direction, could have seen
the child in the act of crossing the latter street
from the sidewalk on the right to that on the left,
and if the accident had occurred in such a way
that after the automobile had run over the body
of the child, and the child's body had already
been stretched out on the ground, the
automobile still moved along a distance of about
2 meters, this circumstance shows the fact that
the automobile entered Solana Street from Real
Street, at a high speed without the defendant
having blown the horn. If these precautions had
been taken by the defendant, the deplorable
accident which caused the death of the child
would not have occurred.
It will be noticed that the defendant in the above case
could have been prosecuted in a criminal case because
his negligence causing the death of the child was
punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper
subject-matter either of a criminal action with its
consequent civil liability arising from a crime or of an
entirely separate and independent civil action for fault or
negligence under article 1902 of the Civil Code. Thus, in
this jurisdiction, the separate individually of a cuasidelito or culpa aquilianaunder the Civil Code has been
fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been
prosecuted and convicted in a criminal case and for which,
after such a conviction, he could have been sued for this
civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to
apply the same doctrine. In Bernal and Enverso vs. House
and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the
parents of the five-year-old child, Purificacion Bernal,
brought a civil action to recover damages for the child's
death as a result of burns caused by the fault and
negligence of the defendants. On the evening of April 10,
1925, the Good Friday procession was held in Tacloban,
Leyte. Fortunata Enverso with her daughter Purificacion
Bernal had come from another municipality to attend the
same. After the procession the mother and the daughter
with two others were passing along Gran Capitan Street in
front of the offices of the Tacloban Electric & Ice Plant,
Ltd., owned by defendants J. V. House, when an
automobile appeared from the opposite direction. The
little girl, who was slightly ahead of the rest, was so
frightened by the automobile that she turned to run, but
unfortunately she fell into the street gutter where hot
water from the electric plant was flowing. The child died
that same night from the burns. The trial courts dismissed
the action because of the contributory negligence of the
plaintiffs. But this Court held, on appeal, that there was no
contributory negligence, and allowed the parents P1,000
in damages from J. V. House who at the time of the tragic
occurrence was the holder of the franchise for the electric
plant. This Court said in part:
Although the trial judge made the findings of fact
hereinbefore outlined, he nevertheless was led to
order the dismissal of the action because of the
contributory negligence of the plaintiffs. It is from
this point that a majority of the court depart from
the stand taken by the trial judge. The mother
and her child had a perfect right to be on the
principal street of Tacloban, Leyte, on the
evening when the religious procession was held.

There was nothing abnormal in allowing the child

to run along a few paces in advance of the
mother. No one could foresee the coincidence of
an automobile appearing and of a frightened
child running and falling into a ditch filled with
hot water. The doctrine announced in the much
debated case of Rakes vs. Atlantic Gulf and
Pacific Co. ([1907]), 7 Phil., 359), still rule. Article
1902 of the Civil Code must again be enforced.
The contributory negligence of the child and her
mother, if any, does not operate as a bar to
recovery, but in its strictest sense could only
result in reduction of the damages.
It is most significant that in the case just cited, this Court
specifically applied article 1902 of the Civil Code. It is thus
that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his
criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year
1915), the action was for damages for the death of the
plaintiff's daughter alleged to have been caused by the
negligence of the servant in driving an automobile over
the child. It appeared that the cause of the mishap was a
defect in the steering gear. The defendant Leynes had
rented the automobile from the International Garage of
Manila, to be used by him in carrying passengers during
the fiesta of Tuy, Batangas. Leynes was ordered by the
lower court to pay P1,000 as damages to the plaintiff. On
appeal this Court reversed the judgment as to Leynes on
the ground that he had shown that the exercised the care
of a good father of a family, thus overcoming the
presumption of negligence under article 1903. This Court
said:
As to selection, the defendant has clearly shown
that he exercised the care and diligence of a
good father of a family. He obtained the machine
from a reputable garage and it was, so far as
appeared, in good condition. The workmen were
likewise selected from a standard garage, were
duly licensed by the Government in their
particular calling, and apparently thoroughly
competent. The machine had been used but a
few hours when the accident occurred and it is
clear from the evidence that the defendant had
no notice, either actual or constructive, of the
defective condition of the steering gear.
The legal aspect of the case was discussed by this Court
thus:
Article 1903 of the Civil Code not only establishes
liability in cases of negligence, but also provides
when the liability shall cease. It says:
"The liability referred to in this article
shall cease when the persons mentioned
therein prove that they employed all the
diligence of a good father of a family to
avoid the damage."
From this article two things are apparent: (1)
That when an injury is caused by the negligence
of a servant or employee there instantly arises a
presumption of law that there was negligence on
the part of the matter or employer either in the
selection of the servant or employee, or in
supervision over him after the selection, or both;
and (2) that presumption is juris tantum and
not juris et de jure, and consequently, may be
rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court
that in selection and supervision he has
exercised the care and diligence of a good father
of a family, the presumption is overcome and he
is relieve from liability.

This theory bases the responsibility of the master

ultimately on his own negligence and not on that
of his servant.
The doctrine of the case just cited was followed by this
Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the
latter case, the complaint alleged that the defendant's
servant had so negligently driven an automobile, which
was operated by defendant as a public vehicle, that said
automobile struck and damaged the plaintiff's motorcycle.
This Court, applying article 1903 and following the rule
in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his
servant where he is the owner or director of a
business or enterprise and the negligent acts are
committed while the servant is engaged in his
master's employment as such owner.
Another case which followed the decision in Bahia vs.
Litonjua and Leynes was Cuison vs. Norton & Harrison Co.,
55 Phil., 18 (year 1930). The latter case was an action for
damages brought by Cuison for the death of his sevenyear-old son Moises. The little boy was on his way to
school with his sister Marciana. Some large pieces of
lumber fell from a truck and pinned the boy underneath,
instantly killing him. Two youths, Telesforo Binoya and
Francisco Bautista, who were working for Ora, an
employee of defendant Norton & Harrison Co., pleaded
guilty to the crime of homicide through reckless
negligence and were sentenced accordingly. This Court,
applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent
superior but the relationship of pater familias.
This theory bases the liability of the master
ultimately on his own negligence and not on that
of his servant. (Bahia vs.Litonjua and Leynes
[1915], 30 Phil., 624; Cangco vs. Manila Railroad
Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber
Co., 55 Phil., 517 (year 1930) the plaintiff brought an
action for damages for the demolition of its wharf, which
had been struck by the steamer Helen C belonging to the
defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the
time the plaintiff's wharf collapsed was a duly
licensed captain, authorized to navigate and
direct a vessel of any tonnage, and that the
appellee contracted his services because of his
reputation as a captain, according to F. C.
Cadwallader. This being so, we are of the opinion
that the presumption of liability against the
defendant has been overcome by the exercise of
the care and diligence of a good father of a
family in selecting Captain Lasa, in accordance
with the doctrines laid down by this court in the
cases cited above, and the defendant is therefore
absolved from all liability.
It is, therefore, seen that the defendant's theory about his
secondary liability is negatived by the six cases above set
forth. He is, on the authority of these cases, primarily and
directly responsible in damages under article 1903, in
relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by
the defendant. We study first, City of Manila vs. Manila
Electric Co., 52 Phil., 586 (year 1928). A collision between
a truck of the City of Manila and a street car of the Manila
Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the
motorman, was prosecuted for the crime of damage to
property and slight injuries through reckless imprudence.
He was found guilty and sentenced to pay a fine of P900,
to indemnify the City of Manila for P1,788.27, with
subsidiary imprisonment in case of insolvency. Unable to
collect the indemnity from Eustaquio, the City of Manila
filed an action against the Manila Electric Company to
obtain payment, claiming that the defendant was
subsidiarily liable. The main defense was that the

defendant had exercised the diligence of a good father of

a family to prevent the damage. The lower court rendered
judgment in favor of the plaintiff. This Court held, in part,
that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there
is no escaping the conclusion that the provisions
of the Penal Code govern. The Penal Code in
easily understandable language authorizes the
determination of subsidiary liability. The Civil
Code negatives its application by providing that
civil obligations arising from crimes or
misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of
the motorman was a misdemeanor falling under
article 604 of the Penal Code. The act of the
motorman was not a wrongful or negligent act or
omission not punishable by law. Accordingly, the
civil obligation connected up with the Penal Code
and not with article 1903 of the Civil Code. In
other words, the Penal Code affirms its
jurisdiction while the Civil Code negatives its
jurisdiction. This is a case of criminal negligence
out of which civil liability arises and not a case of
civil negligence.
xxx

xxx

xxx

Our deduction, therefore, is that the case relates

to the Penal Code and not to the Civil Code.
Indeed, as pointed out by the trial judge, any
different ruling would permit the master to
escape scot-free by simply alleging and proving
that the master had exercised all diligence in the
selection and training of its servants to prevent
the damage. That would be a good defense to a
strictly civil action, but might or might not be to a
civil action either as a part of or predicated on
conviction for a crime or misdemeanor. (By way
of parenthesis, it may be said further that the
statements here made are offered to meet the
argument advanced during our deliberations to
the effect that article 0902 of the Civil Code
should be disregarded and codal articles 1093
and 1903 applied.)
It is not clear how the above case could support the
defendant's proposition, because the Court of Appeals
based its decision in the present case on the defendant's
primary responsibility under article 1903 of the Civil Code
and not on his subsidiary liability arising from Fontanilla's
criminal negligence. In other words, the case of City of
Manila vs. Manila Electric Co., supra, is predicated on an
entirely different theory, which is the subsidiary liability of
an employer arising from a criminal act of his employee,
whereas the foundation of the decision of the Court of
Appeals in the present case is the employer's primary
liability under article 1903 of the Civil Code. We have
already seen that this is a proper and independent
remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another
case invoked by the defendant. A motorman in the employ
of the Manila Electric Company had been convicted o
homicide by simple negligence and sentenced, among
other things, to pay the heirs of the deceased the sum of
P1,000. An action was then brought to enforce the
subsidiary liability of the defendant as employer under the
Penal Code. The defendant attempted to show that it had
exercised the diligence of a good father of a family in
selecting the motorman, and therefore claimed exemption
from civil liability. But this Court held:
In view of the foregoing considerations, we are of
opinion and so hold, (1) that the exemption from
civil liability established in article 1903 of the
Civil Code for all who have acted with the
diligence of a good father of a family, is not
applicable to the subsidiary civil liability provided
in article 20 of the Penal Code.
The above case is also extraneous to the theory of the
defendant in the instant case, because the action there

had for its purpose the enforcement of the defendant's

subsidiary liability under the Penal Code, while in the case
at bar, the plaintiff's cause of action is based on the
defendant's primary and direct responsibility under article
1903 of the Civil Code. In fact, the above case destroys
the defendant's contention because that decision
illustrates the principle that the employer's primary
responsibility under article 1903 of the Civil Code is
different in character from his subsidiary liability under
the Penal Code.
In trying to apply the two cases just referred to, counsel
for the defendant has failed to recognize the distinction
between civil liability arising from a crime, which is
governed by the Penal Code, and the responsibility
for cuasi-delito or culpa aquiliana under the Civil Code,
and has likewise failed to give the importance to the latter
type of civil action.
The defendant-petitioner also cites Francisco vs.
Onrubia (46 Phil., 327). That case need not be set forth.
Suffice it to say that the question involved was also civil
liability arising from a crime. Hence, it is as inapplicable as
the two cases above discussed.
The foregoing authorities clearly demonstrate the
separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that
there is a distinction between civil liability arising from
criminal negligence (governed by the Penal Code) and
responsibility for fault or negligence under articles 1902 to
1910 of the Civil Code, and that the same negligent act
may produce either a civil liability arising from a crime
under the Penal Code, or a separate responsibility for fault
or negligence under articles 1902 to 1910 of the Civil
Code. Still more concretely, the authorities above cited
render it inescapable to conclude that the employer in
this case the defendant-petitioner is primarily and
directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked
should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been
little understood in the past, it might not be inappropriate
to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not
only reckless but also simple negligence. If we were to
hold that articles 1902 to 1910 of the Civil Code refer only
to fault or negligence not punished by law, according to
the literal import of article 1093 of the Civil Code, the
legal institution of culpa aquiliana would have very little
scope and application in actual life. Death or injury to
persons and damage to property through any degree of
negligence even the slightest would have to be
indemnified only through the principle of civil liability
arising from a crime. In such a state of affairs, what
sphere would remain for cuasi-delito or culpa aquiliana?
We are loath to impute to the lawmaker any intention to
bring about a situation so absurd and anomalous. Nor are
we, in the interpretation of the laws, disposed to uphold
the letter that killeth rather than the spirit that giveth life.
We will not use the literal meaning of the law to smother
and render almost lifeless a principle of such ancient
origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil
Code.
Secondly, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required, while
in a civil case, preponderance of evidence is sufficient to
make the defendant pay in damages. There are numerous
cases of criminal negligence which can not be shown
beyond reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under
articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi
jus ibi remedium.
Thirdly, to hold that there is only one way to make
defendant's liability effective, and that is, to sue the driver

and exhaust his (the latter's) property first, would be

tantamount to compelling the plaintiff to follow a devious
and cumbersome method of obtaining relief. True, there is
such a remedy under our laws, but there is also a more
expeditious way, which is based on the primary and direct
responsibility of the defendant under article 1903 of the
Civil Code. Our view of the law is more likely to facilitate
remedy for civil wrongs, because the procedure indicated
by the defendant is wasteful and productive of delay, it
being a matter of common knowledge that professional
drivers of taxis and similar public conveyance usually do
not have sufficient means with which to pay damages.
Why, then, should the plaintiff be required in all cases to
go through this roundabout, unnecessary, and probably
useless procedure? In construing the laws, courts have
endeavored to shorten and facilitate the pathways of right
and justice.
At this juncture, it should be said that the primary and
direct responsibility of employers and their presumed
negligence are principles calculated to protect society.
Workmen and employees should be carefully chosen and
supervised in order to avoid injury to the public. It is the
masters or employers who principally reap the profits
resulting from the services of these servants and
employees. It is but right that they should guarantee the
latter's careful conduct for the personnel and patrimonial
safety of others. As Theilhard has said, "they should
reproach themselves, at least, some for their weakness,
others for their poor selection and all for their
negligence." And according to Manresa, "It is much more
equitable and just that such responsibility should fall upon
the principal or director who could have chosen a careful
and prudent employee, and not upon the injured person
who could not exercise such selection and who used such
employee because of his confidence in the principal or
director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base
this primary responsibility of the employer on the principle
of representation of the principal by the agent. Thus,
Oyuelos says in the work already cited (Vol. 7, p. 747) that
before third persons the employer and employee "vienen
a ser como una sola personalidad, por refundicion de la
del dependiente en la de quien le emplea y utiliza."
("become as one personality by the merging of the person
of the employee in that of him who employs and utilizes
him.") All these observations acquire a peculiar force and
significance when it comes to motor accidents, and there
is need of stressing and accentuating the responsibility of
owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of
both the Penal Code and the Civil Code on this subject,
which has given rise to the overlapping or concurrence of
spheres already discussed, and for lack of understanding
of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek
damages only by virtue of the civil responsibility arising
from a crime, forgetting that there is another remedy,
which is by invoking articles 1902-1910 of the Civil Code.
Although this habitual method is allowed by our laws, it
has nevertheless rendered practically useless and
nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this usual
course. But we believe it is high time we pointed out to
the harm done by such practice and to restore the
principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict or culpa
aquiliana to flow on its own natural channel, so that its
waters may no longer be diverted into that of a crime
under the Penal Code. This will, it is believed, make for the
better safeguarding of private rights because it reestablishes an ancient and additional remedy, and for the
further reason that an independent civil action, not
depending on the issues, limitations and results of a
criminal prosecution, and entirely directed by the party
wronged or his counsel, is more likely to secure adequate
and efficacious redress.
In view of the foregoing, the judgment of the Court of
Appeals should be and is hereby affirmed, with costs
against the defendant-petitioner.

2. In dismissing the complaint.

G.R. No. L-26407 March 31, 1978

EUSEBIO MENDOZA, plaintiff-appellant,
vs.
LA MALLORCA BUS COMPANY, defendant-appellee.
This is an appeal from the Decision of the Court of First
Instance of Nueva Ecija in Civil Case No. 2626
entitled"Eusebio Mendoza, Plaintiff, v. La Mallorca Bus
Company, Defendant," raised to the Court of Appeals but
certified to Us by said court 1 in its Resolution dated July
26, 1966 as only questions of law were raised therein.
The facts are stated in the Resolution of the appellate
court:
On April 3, 1950, at Plaridel, Bulacan, a
collision occurred involving a freight
truck of the plaintiff and a bus of the
defendant. A criminal case for damage
to property thru reckless imprudence
was brought against defendant's driver,
Claudio Arceo, (Criminal Case No. 1230,
CFI-Bulacan). resulting in the conviction
of said driver, which conviction was
affirmed by this Court in CA-G.R. No.
11602-R. in the said criminal case, the
plaintiff made express reservation for
the filing of a separate civil action. In
affirming the judgment of conviction
imposed upon the accused by the lower
court, this Court modified the fine
imposed, with the observation that the
freight truck of the plaintiff therein
involved and damaged was worth only
P5,000.00 and not P7,000.00 as found
by the trial court.
On May 8, 1956, plaintiff filed a separate
civil action for damages against the
herein defendant, based on quasi-delict
under the Civil Code, which separate
civil action (Case No. 2137) was ordered
dismissed by the trial court upon a
finding that plaintiff's action, instituted
exactly six years, one month and five
days from the date of the accident
(which occurred on April 3, 1950) had
already prescribed, which order became
final without plaintiff having appealed
therefrom.
Subsequently, or on August 26, 1957,
the plaintiff instituted the present
action, based on the alleged subsidiary
liability of the defendant company under
the Revised Penal Code. A motion for
pre hearing under Rule 8, Sec. 5 of the
Rules of Court was filed in the lower
Court in consequence of which the lower
court, by order dated Dec. 3, 1958,
ordered the dismissal of the case. The
order of Jan. 20, 1959 denied the motion
for reconsideration.
From the order of the lower court dated
December 3, 1958 dismissing the
instant action on the ground that the
dismissal of Civil Case No. 2137 was a
bar to the present action, the plaintiff
has appealed, alleging that the following
errors were committed by the lower
court:
1. In holding that the dismissal of Civil
Case No. 2137 operated as a bar to the
filing of the present action; and

We agree with the plaintiff-appellant. The lower court

committed a reversible error in declaring that the
dismissed of Civil Case No. 2137 operated as a bar to the
filing of the present action.
It is well-settled in our jurisprudence that the essential
requisites for the existence of res judicata are: (1) the
former judgment must be final; (2) it must have been
rendered by a court having jurisdiction on the merits; (3)
it must be a judgment on the merits; and (4) there must
be, between the first and second actions: (a) identity of
parties; (b) identity of subject matter, and (c) identity of
cause of action. 2
A careful study of the case at bar presents a dispute as to
only one of the above elements: Whether or not, as
between Civil Case No. 2137 and the present action, there
is Identity of causes of action.
We hold that, the two actions, namely, the civil action
based on quasi-delict (Civil Case No. 2137) and the civil
action based on c liability (Civil Case No. 2626), are two
separate and independent actions based on distinct
causes of action. 3
The test of identity of causes of action is stated in tills
wise: It lies not in the form of an action but on whether
the same evidence would support and establish the
former and present causes of action. 4
Civil Case No. 2137 was an action for damages based
on culpa aquiliana under Articles 2176 to 2194 of the New
Civil Code for which the defendant-appellee, as employer,
was to be made primarily and directly liable for reason of
his own negligence, either in the selection or supervision
of his driver; 5 the present action stems from the
conviction by final judgement of defendant-appellee's
driver in the previous criminal case filed against said
driver for damage to property through reckless
imprudence (Crim. Case No. 1230), damages for which
defendant-appellee, as employer, is made subsidiarily
liable under Art. 103 of the Revised Penal Code.
Applying the above-stated test, it is evident that res
judicata cannot be a defense against the filing of the
present action by petitioner. Defendant-appellee could
thwart an adverse decision in Civil Case No. 2137 by
proving his due diligence in the selection of its employees,
but this same evidence will fail in the present action for
his liability is inseparable from that of his driver once the
latter is finally convicted. 6
In the case of M.D. Transit & Taxi Co., Inc. v. Court of
Appeals (22 SCRA 559), this Court declared the same
principle in simpler terms:
The importance of this issue is due to
the fact that appellant's alleged
diligence in the selection of its
employees and in exercising supervision
over them would be a good defense
should the action be bard upon a quasidelict, but not ff predicated upon a
liability springing from a crime.
The question presented before Us has already been
resolved in the case of Jocson v. Glorioso, 7 where the
issue under consideration is "whether the previous
dismissal of an action based on culpa aquiliana precludes
the application of the plain and explicit command of Art.
103 of the Revised Penal Code." There, this Court ruled in
the negative having adopted this Court's decision in a
previous case, Diana v. Batangas Trans, Co. 8 where it was
held:
Considering the distinguishing
characteristics of the two cases, which
involve two different remedies, it can
hardly be said that there is Identity of
reliefs in both actions as to make the

present case fall under the operation of

Rule 8, Section I (d) of the Rules of
Court. In other words, it is a mistake to
say that the present action should be
dismissed because of the pendency of
another action between the same
parties involving the same cause.
Evidently, both cases involve different
causes of action. In fact. when the Court
of Appeals dismissed the action based
on culpa aquiliana (Civil Case No. 8022),
this distinction was stressed. It was
there said that the negligent act
committed by defendant's employee is
not a quasi crime, for such negligence is
punished by law. What plaintiffs should
have done was to institute an action
under Art. 103 of the Revised Penal
Code (CA-G.R. No. 3632-R). And this is
what plaintiffs have done. To deprive
them now of this remedy, after the
conviction of defendant's employee,
would be to deprive them altogether of
the indemnity to which they are entitled
by law and by a court decision, which
injustice it is our duty to prevent.
This Court then concluded:
On the same principle then, the previous
dismissal of the action based on culpa
aquiliana could not be a bar to the
enforcement of the subsidiary liability
required by Art. 103 of the Revised
Penal Code.
What clearly emerges then is the
controlling force of the principle that
once there is a conviction for a felony,
final in character, the employer
according to the plain and explicit
command of Article 103 of the Revised
Penal Code, is subsidiarily liable, if it be
shown that the commission thereof was
in the discharge of the duties of such
employee. 9
WHEREFORE, judgment is hereby entered setting aside
the orders of the lower court dated December 3, 1958 and
January 20, 1959 respectively dismissing the present
action and denying plaintiff-appellant's motion for
reconsideration. Let the case be remanded below for
further proceedings.
SO ORDERED.

G.R. No. L-46179 January 31, 1978

CANDIDA VIRATA, TOMAS VIRATA, MANOLITO
VIRATA, EDERLINDA VIRATA, NAPOLEON VIRATA,
ARACELY VIRATA, ZENAIDA VIRATA, LUZMINDA
VIRATA, PACITA VIRATA, and EVANGELINA
VIRATA,petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE
COURT OF FIRST INSTANCE OF CAVITE, 7th JUDICIAL
DISTRICT, BRANCH V, stationed at BACOOR,
CAVITE, respondents.
This is an appeal by certiorari, from the order of the Court
of First Instance of Cavite, Branch V, in Civil Case No. B134 granting the motion of the defendants to dismiss the
complaint on the ground that there is another action
pending between the same parties for the same cause. 1

The record shows that on September 24, 1975 one

Arsenio Virata died as a result of having been bumped
while walking along Taft Avenue, Pasay City by a
passenger jeepney driven by Maximo Borilla and
registered in the name Of Victoria Ochoa; that Borilla is
the employer of Ochoa; that for the death of Arsenio
Virata, a action for homicide through reckless imprudence
was instituted on September 25, 1975 against Maximo
Borilla in the Court of First Instance of Rizal at Pasay City,
docketed as C Case No. 3162-P of said court; that at the
hearing of the said criminal case on December 12, 1975,
Atty. Julio Francisco, the private prosecutor, made a
reservation to file a separate civil action for damages
against the driver on his criminal liability; that on February
19, 1976 Atty. Julio Francisco filed a motion in said c case
to withdraw the reservation to file a separate civil action;
that thereafter, the private prosecutor actively
participated in the trial and presented evidence on the
damages; that on June 29, 1976 the heirs of Arsenio Virata
again reserved their right to institute a separate civil
action; that on July 19, 1977 the heirs of Arsenio Virata,
petitioners herein, commenced Civil No. B-134 in the
Court of First Instance of Cavite at Bacoor, Branch V, for
damages based on quasi-delict against the driver Maximo
Borilla and the registered owner of the jeepney, Victorio
Ochoa; that on August 13, 1976 the defendants, private
respondents filed a motion to dismiss on the ground that
there is another action, Criminal Case No. 3162-P, pending
between the same parties for the same cause; that on
September 8, 1976 the Court of First Instance of Rizal at
Pasay City a decision in Criminal Case No. 3612-P
acquitting the accused Maximo Borilla on the ground that
he caused an injury by name accident; and that on
January 31, 1977, the Court of First Instance of Cavite at
Bacoor granted the motion to Civil Case No. B-134 for
damages. 2
The principal issue is weather or not the of the Arsenio
Virata, can prosecute an action for the damages based on
quasi-delict against Maximo Borilla and Victoria Ochoa,
driver and owner, respectively on the passenger jeepney
that bumped Arsenio Virata.
It is settled that in negligence cases the aggrieved parties
may choose between an action under the Revised Penal
Code or of quasi-delict under Article 2176 of the Civil Code
of the Philippines. What is prohibited by Article 2177 of
the Civil Code of the Philippines is to recover twice for the
same negligent act.
The Supreme Court has held that:
According to the Code Commission: 'The
foregoing provision (Article 2177)
though at first sight startling, is not so
novel or extraordinary when we consider
the exact nature of criminal and civil
negligence. The former is a violation of
the criminal law, while the latter is a
'culpa aquiliana' or quasi-delict, of
ancient origin, having always had its
own foundation and individuality,
separate from criminal negligence. Such
distinction between criminal negligence
and 'culpa extra-contractual' or quasidelito has been sustained by decision of
the Supreme Court of Spain and
maintained as clear, sound and
perfectly tenable by Maura, an
outstanding Spanish jurist. Therefore,
under the proposed Article 2177,
acquittal from an accusation of criminal
negligence, whether on reasonable
doubt or not, shall not be a bar to a
subsequent civil action, not for civil
liability arising from criminal negligence,
but for damages due to a quasi-delict or
'culpa aquiliana'. But said article
forestalls a double recovery. (Report of
the Code Commission, p. 162.)
Although, again, this Article 2177 does
seem to literally refer to only acts of
negligence, the same argument of

Justice Bocobo about construction that

upholds 'the spirit that given life' rather
than that which is literal that killeth the
intent of the lawmaker should be
observed in applying the same. And
considering that the preliminary chapter
on human relations of the new Civil
Code definitely establishes the
separability and independence of
liability in a civil action for acts criminal
in character (under Articles 29 to 32)
from the civil responsibility arising from
crime fixed by Article 100 of the Penal
Code, and, in a sense, the Rules of
Court, under Sections 2 and 3(c), Rule
111, contemplate also the same
separability, it is 'more congruent' with
the spirit of law, equity and justice, and
more in harmony with modern progress',
to borrow the felicitous language in
Rakes vs. Atlantic Gulf and Pacific Co., 7
Phil. to 359, to hod as We do hold, that
Article 2176, where it refers to 'fault
covers not only acts 'not punishable by
law' but also criminal in character,
whether intentional and voluntary or
consequently, a separate civil action lies
against the in a criminal act, whether or
not he is criminally prosecuted and
found guilty and acquitted, provided
that the offended party is not allowed, if
he is actually charged also criminally, to
recover damages on both scores, and
would be entitled in such eventuality
only to the bigger award of the, two
assuming the awards made in the two
cases vary. In other words the extinction
of civil liability refereed to in Par. (c) of
Section 13, Rule 111, refers exclusively
to civil liability founded on Article 100 of
the Revised Penal Code, whereas the
civil liability for the same act considered
as a quasi-delict only and not as a crime
is not extinguished even by a
declaration in the criminal case that the
criminal act charged has not happened
or has not been committed by the
accused. Brief stated, We hold, in
reitration of Garcia, that culpa aquilina
includes voluntary and negligent acts
which may be punishable by law. 3
The petitioners are not seeking to recover twice for the
same negligent act. Before Criminal Case No. 3162-P was
decided, they manifested in said criminal case that they
were filing a separate civil action for damages against the
owner and driver of the passenger jeepney based
on quasi-delict. The acquittal of the driver, Maximo Borilla,
of the crime charged in Criminal Case No. 3162-P is not a
bar to the prosecution of Civil Case No. B-134 for damages
based on quasi-delict The source of the obligation sought
to be enforced in Civil Case No. B-134 isquasi-delict, not
an act or omission punishable by law. Under Article 1157
of the Civil Code of the Philippines, quasi-delict and an act
or omission punishable by law are two different sources of
obligation.
Moreover, for the petitioners to prevail in the action for
damages, Civil Case No. B-134, they have only to
establish their cause of action by preponderance of the
evidence.
WHEREFORE, the order of dismissal appealed from is
hereby set aside and Civil Case No. B-134 is reinstated
and remanded to the lower court for further proceedings,
with costs against the private respondents.
SO ORDERED.

G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO
ISIDRO, and TRAVELLERS MULTI-INDEMNITY
CORPORATION, respondents.
Assailed in this petition for review on certiorari are 1) the
decision 1 of the then Intermediate Appellate Court 2 in
AC-G.R. CV No. 01055, entitled "Pedro T. Layugan,
Plaintiff-Appellee, versus Godofredo Isidro, DefendantAppellant and Third-Party Plaintiff-Appellee, versus
Travellers Multi-Indemnity Corporation, Third Party
Defendant- Appellant, "which reversed and set aside the
decision 3 of the Regional Trial Court, Third Judicial Region,
Branch XXVI, Cabanatuan City, and also dismissed the
complaint, third party complaint, and the counter claims
of the parties and 2) the resolution 4 denying the plaintiffappellee's (herein petitioner) motion for reconsideration,
for lack of merit.
The findings of fact by the trial court which were adopted
by the appellate court are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for
damages against Godofredo Isidro,
alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the
Plaintiff and a companion were repairing
the tire of their cargo truck with Plate
No. SU-730 which was parked along the
right side of the National Highway; that
defendant's truck bearing Plate No. PW583, driven recklessly by Daniel Serrano
bumped the plaintiff, that as a result,
plaintiff was injured and hospitalized at
Dr. Paulino J. Garcia Research and
Medical Center and the Our Lady of
Lourdes Hospital; that he spent TEN
THOUSAND PESOS (Pl0,000.00) and will
incur more expenses as he recuperates
from said injuries; that because of said
injuries he would be deprived of a
lifetime income in the sum of SEVENTY
THOUSAND PESOS (P70,000.00); and
that he agreed to pay his lawyer the
sum of TEN THOUSAND PESOS
(Pl0,000.00).
As prayed for by the plaintiffs counsel,
the Court declared the defendant in
default on October 12, 1979, and
plaintiff's evidence was received exparte on January 11, 1978 and February
19, 1980. The decision on behalf of the
plaintiff was set aside to give a chance
to the defendant to file his answer and
later on, a third-party complaint.
Defendant admitted his ownership of
the vehicle involved in the accident
driven by Daniel Serrano. Defendant
countered that the plaintiff was merely a
bystander, not a truck helper being a
brother-in-law law of the driver of said
truck; that the truck allegedly being
repaired was parked, occupying almost
half of the right lane towards Solano,
Nueva Vizcaya, right after the curve;
that the proximate cause of the incident
was the failure of the driver of the
parked truck in installing the early
warning device, hence the driver of the
parked car should be liable for damages
sustained by the truck of the herein
defendant in the amount of more than
P20,000.00; that plaintiff being a mere
bystander and hitchhiker must suffer all

the damages he incurred. By way of

counterclaim defendant alleged that due
to plaintiffs baseless complaint he was
constrained to engage the services of
counsel for P5,000.00 and P200.00 per
court appearance; that he suffered
sleepless nights, humiliation, wounded
feelings which may be estimated at
P30.000.00.
On May 29, 1981, a third-party
complaint was filed by the defendant
against his insurer, the Travellers Multi
Indemnity Corporation; that the thirdparty plaintiff, without admitting his
liability to the plaintiff, claimed that the
third-party defendant is liable to the
former for contribution, indemnity and
subrogation by virtue of their contract
under Insurance Policy No. 11723 which
covers the insurer's liability for damages
arising from death, bodily injuries and
damage to property.
Third-party defendant answered that,
even assuming that the subject matter
of the complaint is covered by a valid
and existing insurance policy, its liability
shall in no case exceed the limit defined
under the terms and conditions stated
therein; that the complaint is premature
as no claim has been submitted to the
third party defendant as prescribed
under the Insurance Code; that the
accident in question was approximately
caused by the carelessness and gross
negligence of the plaintiff-, that by
reason of the third-party complaint,
third-party defendant was constrained
to engage the services of counsel for a
fee of P3,000.00.
Pedro Layugan declared that he is a
married man with one (1) child. He was
employed as security guard in
Mandaluyong, Metro Manila, with a
salary of SIX HUNDRED PESOS (600.00)
a month. When he is off-duty, he worked
as a truck helper and while working as
such, he sustained injuries as a result of
the bumping of the cargo truck they
were repairing at Baretbet, Bagabag,
Nueva Vizcaya by the driver of the
defendant. He used to earn TWO
HUNDRED PESOS (P200.00) to THREE
HUNDRED PESOS (P300.00) monthly, at
the rate of ONE HUNDRED PESOS
(Pl00.00) per trip. Due to said injuries,
his left leg was amputated so he had to
use crutches to walk. Prior to the
incident, he supported his family
sufficiently, but after getting injured, his
family is now being supported by his
parents and brother.
GODOFREDO ISIDRO, defendant/thirdparty plaintiff, testified that his truck
involved in this vehicular accident is
insured with the Travellers Multi
Indemnity Corporation covering own
damage and third-party liability, under
vehicle policy No. 11723 (Exh. "1")
dated May 30, 1978; that after he filed
the insurance claim the insurance
company paid him the sum of
P18,000.00 for the damages sustained
by this truck but not the third party
liability.
DANIEL SERRANO, defendant driver,
declared that he gave a statement
before the municipal police of Bagabag,
Nueva Vizcaya on May 16, 1979; that he
knew the responsibilities of a driver;

that before leaving, he checked the

truck. The truck owner used to instruct
him to be careful in driving. He bumped
the truck being repaired by Pedro
Layugan, plaintiff, while the same was
at a stop position. From the evidence
presented, it has been established
clearly that the injuries sustained by the
plaintiff was caused by defendant's
driver, Daniel Serrano. The police report
confirmed the allegation of the plaintiff
and admitted by Daniel Serrano on
cross-examination. The collision
dislodged the jack from the parked truck
and pinned the plaintiff to the ground.
As a result thereof, plaintiff sustained
injuries on his left forearm and left foot.
The left leg of the plaintiff from below
the knee was later on amputated (Exh.
"C") when gangrene had set in, thereby
rendering him incapacitated for work
depriving him of his income. (pp. 118 to
120, Record on Appeal.)
xxx xxx xxx
Upon such findings, amply supported by the evidence on
record, the trial court rendered its decision, the dispositive
part of which reads as follows: 6
WHEREFORE, premises considered, the
defendant is hereby ordered:
a) To pay the plaintiff SEVENTY
THOUSAND (P70,000.00) PESOS actual
and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS
for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS
for moral damages; and
d) To pay the costs of this suit. On the
third-party complaint, the third-party
defendant is ordered to indemnify the
defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND
(P50,000.00) PESOS for actual and
compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated
reversed the decision of the trial court and dismissed the
complaint, the third-party complaint, and the counterclaims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors.

1. WHETHER UPON THE GIVEN FACTS,

THE INTERMEDIATE APPELLATE COURT
ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE
PLAINTIFF-APPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE
APPELLATE COURT ACTED CORRECTLY IN
APPLYING THE DOCTRINE OF "RES IPSA
LOQUITUR" WITH PROPER JURISPRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error
of the decision of the respondent court finding the
petitioner negligent under the doctrine of Res ipsa
loquitur (The thing speaks for itself).<re||

an1w> Corollary thereto, is the question as to who is

negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised
in the petition being factual, the same is not reviewable
by this Court in a petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions
of the Court of Appeals that its findings of fact are entitled
to great respect and will not ordinarily be disturbed by this
Court. 10 For if we have to review every question of fact
elevated to us, we would hardly have any more time left
for the weightier issues compelling and deserving our
preferential attention. 11 Be that as it may, this rule is not
inflexible. Surely there are established exceptions 12
when the Court should review and rectify the findings of
fact of the lower court, such as:
1) when the conclusion is a finding grounded entirely on
speculation, surmise, or conjecture; 2) the inference made
is manifestly mistaken; 3) there is grave abuse of
discretion; 4) the judgment is based on misapprehension
of facts; 5) the Court of Appeals went beyond the issues of
the case if the findings are contrary to the admission of
both the appellant and the appellee; 6) the findings of the
Court of Appeals are contrary to those of the trial court; 7)
the said findings of fact are conclusions without citation of
specific evidence on which they are based; 8) the facts set
forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents; and 9)
when the findings of fact of the Court of Appeals are
premised on the absence of evidence and are
contradicted on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to
warrant a deviation from the general rule.
From its finding that the parked truck was loaded with ten
(10) big round logs 13 the Court of Appeals inferred that
because of its weight the truck could not have been
driven to the shoulder of the road and concluded that the
same was parked on a portion of the road 14 at the time of
the accident. Consequently, the respondent court inferred
that the mishap was due to the negligence of the driver of
the parked truck. 15 The inference or conclusion is
manifestly erroneous. In a large measure, it is grounded
on speculation, surmise, or conjecture. How the
respondent court could have reversed the finding of the
trial court that a warning device was installed 16 escapes
us because it is evident from the record that really such a
device, in the form of a lighted kerosene lamp, was
installed by the driver of the parked truck three to four
meters from the rear of his parked truck. 17 We see this
negative finding of the respondent appellate court as a
misreading of the facts and the evidence on record and
directly contravening the positive finding of the trial court
that an early warning device was in proper place when the
accident happened and that the driver of the private
respondent was the one negligent. On the other hand, the
respondent court, in refusing to give its "imprimatur to the
trial court's finding and conclusion that Daniel Serrano
(private respondent Isidro's driver) was negligent in
driving the truck that bumped the parked truck", did not
cite specific evidence to support its conclusion. In cavalier
fashion, it simply and nebulously adverted to unspecified
"scanty evidence on record." 18

corporation should not have waited in ambush before the

comment was required and before due course was given.
In any event, to exact its "a pound of flesh", so to speak,
at this very late stage, would cause a grave miscarriage of
justice. Parenthetically, it must be noted that private
respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence
is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate
the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would
not do 24 or as Judge Cooley defines it, "(T)he failure to
observe for the protection of the interests of another
person, that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such
other person suffers injury. 25
In Picart vs. Smith, 26 decided more than seventy years
ago but still a sound rule, we held:
The test by which to determine the existence of
negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of
the actor in the situation before him. The Law considers
what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and
determines liability by that.
Respondent Isidro posits that any immobile object along
the highway, like a parked truck, poses serious danger to
a moving vehicle which has the right to be on the
highway. He argues that since the parked cargo truck in
this case was a threat to life and limb and property, it was
incumbent upon the driver as well as the petitioner, who
claims to be a helper of the truck driver, to exercise
extreme care so that the motorist negotiating the road
would be properly forewarned of the peril of a parked
vehicle. Isidro submits that the burden of proving that
care and diligence were observed is shifted to the
petitioner, for, as previously claimed, his (Isidro's) Isuzu
truck had a right to be on the road, while the immobile
cargo truck had no business, so to speak, to be there.
Likewise, Isidro proffers that the petitioner must show to
the satisfaction of a reasonable mind that the driver and
he (petitioner) himself, provided an early warning device,
like that required by law, or, by some other adequate
means that would properly forewarn vehicles of the
impending danger that the parked vehicle posed
considering the time, place, and other peculiar
circumstances of the occasion. Absent such proof of care,
as in the case at bar, Isidro concludes, would, under the
doctrine of Res ipsa loquitur, evoke the presumption of
negligence on the part of the driver of the parked cargo
truck as well as his helper, the petitioner herein, who was
fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.

On the technical aspect of the case, the respondent

corporation would want us to dismiss this petition on the
ground that it was filed out of time. It must be noted that
there was a motion for extension, 19 albeit filed
erroneously with the respondent court, dated March 19,
1986, requesting for 30 days from March 20, 1986, to file
the necessary petition or pleading before the Supreme
Court". Also, on April 1, 1986, an appearance of a new
lawyer for the petitioner before the Supreme Court" with
motion 20 was filed, again erroneously, with the Court of
Appeals, requesting for 20 days extension "to file the
Petition for Review on Certiorari." Likewise a similar
motion 21 was filed with this Court also on April 1, 1986.
On the other hand, the instant petition for review was filed
on April 17, 1986 22 but it was only after three months, on
August 1, 1986, in its comment 23 that the respondent
corporation raised the issue of tardiness. The respondent

The evidence on record discloses that three or four meters

from the rear of the parked truck, a lighted kerosene lamp
was placed. 28 Moreover, there is the admission of
respondent Isidro's driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino
Velasco)Will you narrate to me in brief
how the accident happens (sic) if you
can still remember?
Answer: (by Daniel Serrano)
That on or about
10:40 p.m., 15 May

1979 while driving

Isuzu truck at
Baretbet, Bagabag,
Nueva Vizcaya and at
KM 285, I met another
vehicle who (sic) did
not dim his (sic)
lights which
cause (sic) me to be
blinded with intense
glare of the light
that's why I did not
notice a parked truck
who (sic) was
repairing a front flat
tire. When I was a few
meters away, I saw
the truck which was
loaded with round
logs. I step (sic) on my
foot brakes but it did
not function with my
many attempts. I
have (sic) found out
later that the fluid
pipe on the rear right
was cut that's why the
breaks did not
function. (Emphasis
supplied).
Whether the cargo truck was parked along the road or on
half the shoulder of the right side of the road would be of
no moment taking into account the warning device
consisting of the lighted kerosene lamp placed three or
four meters from the back of the truck. 30 But despite this
warning which we rule as sufficient, the Isuzu truck driven
by Daniel Serrano, an employee of the private respondent,
still bumped the rear of the parked cargo truck. As a direct
consequence of such accident the petitioner sustained
injuries on his left forearm and left foot. His left leg was
later amputated from below the knee when gangrene had
set in. 31
It is clear from the foregoing disquisition that the absence
or want of care of Daniel Serrano has been established by
clear and convincing evidence. It follows that in stamping
its imprimatur upon the invocation by respondent Isidro of
the doctrine of Res ipsa loquitur to escape liability for the
negligence of his employee, the respondent court
committed reversible error.
The respondent court ruled:

32

xxx xxx xxx

In addition to this, we agree with the
following arguments of appellant
Godofredo Isidro which would show that
the accident was caused due to the
negligence of the driver of the cargo
truck:
xxx xxx xxx
... In the case at bar
the burden of proving
that care and
diligence was (sic)
observed is shifted
evidently to the
plaintiff, for, as
adverted to, the
motorists have the
right to be on the
road, while the
immobile truck has no
business, so to speak,
to be there. It is thus
for the plaintiff to
show to the
satisfaction of a
reasonable mind that

the driver and he

himself did employ
early warning device
such as that required
by law or by some
other adequate means
or device that would
properly forewarn
vehicles of the
impending danger
that the parked
vehicle posed
considering the time,
place and other
peculiar
circumstances of the
occasion. Absent such
proof of care, as in the
case at bar, will evoke
the presumption of
negligence under the
doctrine of res ipsa
loquitur, on the part of
the driver of the
parked cargo truck as
well as plaintiff who
was fixing the flat tire
of said truck. (pp. 1417, Appellant's Brief).
(Emphasis supplied).
At this juncture, it may be enlightening and helpful in the
proper resolution of the issue of negligence to examine
the doctrine of Res ipsa loquitur.
This doctrine is stated thus: "Where the thing which
causes injury is shown to be under the management of
the defendant, and the accident is such as in the ordinary
course of things does not happen if those who have the
management use proper care, it affords reasonable
evidence, in the absence of an explanation by the
defendant, that the accident arose from want of
care. 33 Or as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for
itself Rebuttable presumption or
inference that defendant was negligent,
which arises upon proof that
instrumentality causing injury was in
defendant's exclusive control, and that
the accident was one which ordinarily
does not happen in absence of
negligence. Res ipsa loquitur is rule of
evidence whereby negligence of alleged
wrongdoer may be inferred from mere
fact that accident happened provided
character of accident and circumstances
attending it lead reasonably to belief
that in absence of negligence it would
not have occurred and that thing which
caused injury is shown to have been
under management and control of
alleged wrongdoer. Hillen v. Hooker
Const. Co., Tex. Civ. App., 484 S.W. 2d
133, 155. Under doctrine of "res ipsa
loquitur" the happening of an injury
permits an inference of negligence
where plaintiff produces substantial
evidence that injury was caused by an
agency or instrumentality under
exclusive control and management of
defendant, and that the occurrence was
such that in the ordinary course of
things would not happen if reasonable
care had been used.
In this jurisdiction we have applied this doctrine in quite a
number of cases, notably in Africa et al. vs. Caltex, Inc., et
al., 35 and the latest is in the case of F.F. Cruz and Co., Inc.
vs. CA. 36
The doctrine of Res ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct

proof and furnishes a substitute for specific proof of

negligence. 37 The doctrine is not a rule of substantive
law 38 but merely a mode of proof or a mere procedural
convenience. 39 The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and
does not dispense with the requirement of proof of
culpable negligence on the part of the party charged. 40 It
merely determines and regulates what shall be prima
facie evidence thereof and facilitates the burden of
plaintiff of proving a breach of the duty of due care. 41 The
doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not
readily available. 42 Hence, it has generally been held that
the presumption of inference arising from the doctrine
cannot be availed of, or is overcome, where plaintiff has
knowledge and testifies or presents evidence as to the
specific act of negligence which is the cause of the injury
complained of or where there is direct evidence as to the
precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly
appear. 43 Finally, once the actual cause of injury is
established beyond controversy, whether by the plaintiff
or by the defendant, no presumptions will be involved and
the doctrine becomes inapplicable when the
circumstances have been so completely eludicated that
no inference of defendant's liability can reasonably be
made, whatever the source of the evidence, 44 as in this
case.
The private respondent is sued under Art. 2176 in relation
to Art. 2180, paragraph 5, of the Civil Code. In the latter,
when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that
there was negligence on the part of the master or
employer either in the selection of the servant or
employee, or in supervision over him after selection, or
both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows
necessarily that if the employer shows to the satisfaction
of the court that in the selection and in the supervision he
has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved
from liability. 45 In disclaiming liability for the incident, the
private respondent stresses that the negligence of his
employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a
driver and that the truck owner used to instruct him to be
careful in driving.46
We do not agree with the private respondent in his
submission. In the first place, it is clear that the driver did
not know his responsibilities because he apparently did
not check his vehicle before he took it on the road. If he
did he could have discovered earlier that the brake fluid
pipe on the right was cut, and could have repaired it and
thus the accident could have been avoided. Moveover, to
our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the
driver was licensed, and the fact that he had no record of
any accident, as found by the respondent court, are not
sufficient to destroy the finding of negligence of the
Regional Trial Court given the facts established at the
trial 47 The private respondent or his mechanic, who must
be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to drive
it. In the light of the circumstances obtaining in the case,
we hold that Isidro failed to prove that the diligence of a
good father of a family in the supervision of his employees
which would exculpate him from solidary liability with his
driver to the petitioner. But even if we concede that the
diligence of a good father of a family was observed by
Isidro in the supervision of his driver, there is not an iota
of evidence on record of the observance by Isidro of the
same quantum of diligence in the supervision of his
mechanic, if any, who would be directly in charge in
maintaining the road worthiness of his (Isidro's) truck. But
that is not all. There is paucity of proof that Isidro
exercised the diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in the
selection of his mechanic, if any, in order to insure the
safe operation of his truck and thus prevent damage to
others. Accordingly, the responsibility of Isidro as
employer treated in Article 2180, paragraph 5, of the Civil
Code has not ceased.

WHEREFORE, the petition is hereby GRANTED. The

Decision of the respondent court as well as its Resolution
denying the petitioner's motion for reconsideration are
hereby SET ASIDE and the decision of the trial court,
dated January 20, 1983, is hereby REINSTATED in toto.
With costs against the private respondents.
SO ORDERED.

G.R. No. L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.
In this action the plaintiff, Amado Picart, seeks to recover
of the defendant, Frank Smith, jr., the sum of P31,000, as
damages alleged to have been caused by an automobile
driven by the defendant. From a judgment of the Court of
First Instance of the Province of La Union absolving the
defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this
action took place on December 12, 1912, on the Carlatan
Bridge, at San Fernando, La Union. It appears that upon
the occasion in question the plaintiff was riding on his
pony over said bridge. Before he had gotten half way
across, the defendant approached from the opposite
direction in an automobile, going at the rate of about ten
or twelve miles per hour. As the defendant neared the
bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and
after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on
horseback before him was not observing the rule of the
road.
The plaintiff, it appears, saw the automobile coming and
heard the warning signals. However, being perturbed by
the novelty of the apparition or the rapidity of the
approach, he pulled the pony closely up against the railing
on the right side of the bridge instead of going to the left.
He says that the reason he did this was that he thought he
did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters
and a width of 4.80 meters. As the automobile
approached, the defendant guided it toward his left, that
being the proper side of the road for the machine. In so
doing the defendant assumed that the horseman would
move to the other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the automobile
to stop. Seeing that the pony was apparently quiet, the
defendant, instead of veering to the right while yet some
distance away or slowing down, continued to approach
directly toward the horse without diminution of speed.
When he had gotten quite near, there being then no
possibility of the horse getting across to the other side,
the defendant quickly turned his car sufficiently to the
right to escape hitting the horse alongside of the railing
where it as then standing; but in so doing the automobile
passed in such close proximity to the animal that it
became frightened and turned its body across the bridge
with its head toward the railing. In so doing, it as struck on
the hock of the left hind leg by the flange of the car and
the limb was broken. The horse fell and its rider was
thrown off with some violence. From the evidence
adduced in the case we believe that when the accident
occurred the free space where the pony stood between
the automobile and the railing of the bridge was probably
less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions
which caused temporary unconsciousness and required
medical attention for several days.
The question presented for decision is whether or not the
defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a
civil obligation to repair the damage done; and we are of
the opinion that he is so liable. As the defendant started
across the bridge, he had the right to assume that the

horse and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and
he must in a moment have perceived that it was too late
for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance
away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going
to a place of greater safety. The control of the situation
had then passed entirely to the defendant; and it was his
duty either to bring his car to an immediate stop or,
seeing that there were no other persons on the bridge, to
take the other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost
upon the horse. He was, we think, deceived into doing this
by the fact that the horse had not yet exhibited fright. But
in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was
unacquainted with automobiles, he might get exited and
jump under the conditions which here confronted him.
When the defendant exposed the horse and rider to this
danger he was, in our opinion, negligent in the eye of the
law.
The test by which to determine the existence of
negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use
that person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of
the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and
determines liability by that.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and in view
of the facts involved in the particular case. Abstract
speculations cannot here be of much value but this much
can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or
known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to
take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the
case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor
to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary
before negligence can be held to exist. Stated in these
terms, the proper criterion for determining the existence
of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing
conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the
present case we think that negligence is clearly
established. A prudent man, placed in the position of the
defendant, would in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and
would therefore have foreseen harm to the horse and the
rider as reasonable consequence of that course. Under
these circumstances the law imposed on the defendant
the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not
free from fault, for he was guilty of antecedent negligence
in planting himself on the wrong side of the road. But as
we have already stated, the defendant was also negligent;
and in such case the problem always is to discover which
agent is immediately and directly responsible. It will be
noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant
succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is
that the person who has the last fair chance to avoid the
impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence
of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and

Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that
while contributory negligence on the part of the person
injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would
otherwise have been assessed wholly against the other
party. The defendant company had there employed the
plaintiff, as a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars
which were hauled along a narrow track. At certain spot
near the water's edge the track gave way by reason of the
combined effect of the weight of the car and the
insecurity of the road bed. The car was in consequence
upset; the rails slid off; and the plaintiff's leg was caught
and broken. It appeared in evidence that the accident was
due to the effects of the typhoon which had dislodged one
of the supports of the track. The court found that the
defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff was,
at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead of
being in front or behind. It was held that while the
defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper
repair nevertheless the amount of the damages should be
reduced on account of the contributory negligence in the
plaintiff. As will be seen the defendant's negligence in that
case consisted in an omission only. The liability of the
company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us,
where the defendant was actually present and operating
the automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the
respective parties in order to apportion the damage
according to the degree of their relative fault. It is enough
to say that the negligence of the defendant was in this
case the immediate and determining cause of the
accident and that the antecedent negligence of the
plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the
special defense pleaded in the defendant's answer, to the
effect that the subject matter of the action had been
previously adjudicated in the court of a justice of the
peace. In this connection it appears that soon after the
accident in question occurred, the plaintiff caused criminal
proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious
injuries (lesiones graves). At the preliminary investigation
the defendant was discharged by the magistrate and the
proceedings were dismissed. Conceding that the acquittal
of the defendant at the trial upon the merits in a criminal
prosecution for the offense mentioned would be res
adjudicata upon the question of his civil liability arising
from negligence -- a point upon which it is unnecessary to
express an opinion -- the action of the justice of the peace
in dismissing the criminal proceeding upon the preliminary
hearing can have no effect. (See U. S. vs. Banzuela and
Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of
the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the
sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include
the value of the horse, medical expenses of the plaintiff,
the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are
remote or otherwise of such character as not to be
recoverable. So ordered.

G.R. No. 166869

February 16, 2010

PHILIPPINE HAWK CORPORATION, Petitioner,

vs.
VIVIAN TAN LEE, Respondent.

This is a Petition for Review on Certiorari1 of the Decision

of the Court of Appeals in CA-G.R. CV No. 70860,
promulgated on August 17, 2004, affirming with
modification the Decision of the Regional Trial Court (RTC)
of Quezon City, Branch 102, dated March 16, 2001, in Civil
Case No. Q-91-9191, ordering petitioner Philippine Hawk
Corporation and Margarito Avila to jointly and severally
pay respondent Vivian Tan Lee damages as a result of a
vehicular accident.
The facts are as follows:
On March 15, 2005, respondent Vivian Tan Lee filed before
the RTC of Quezon City a Complaint2 against petitioner
Philippine Hawk Corporation and defendant Margarito
Avila for damages based on quasi-delict, arising from a
vehicular accident that occurred on March 17, 1991 in
Barangay Buensoceso, Gumaca, Quezon. The accident
resulted in the death of respondents husband, Silvino Tan,
and caused respondent physical injuries.
On June 18, 1992, respondent filed an Amended
Complaint,3 in her own behalf and in behalf of her
children, in the civil case for damages against petitioner.
Respondent sought the payment of indemnity for the
death of Silvino Tan, moral and exemplary damages,
funeral and interment expenses, medical and
hospitalization expenses, the cost of the motorcycles
repair, attorneys fees, and other just and equitable
reliefs.
The accident involved a motorcycle, a passenger jeep,
and a bus with Body No. 119. The bus was owned by
petitioner Philippine Hawk Corporation, and was then
being driven by Margarito Avila.
In its Answer,4 petitioner denied liability for the vehicular
accident, alleging that the immediate and proximate
cause of the accident was the recklessness or lack of
caution of Silvino Tan. Petitioner asserted that it exercised
the diligence of a good father of the family in the selection
and supervision of its employees, including Margarito
Avila.
On March 25, 1993, the trial court issued a Pre-trial
Order5 stating that the parties manifested that there was
no possibility of amicable settlement between them.
However, they agreed to stipulate on the following facts:
1. On March 17, 1991, in Bgy. Buensoceso,
Gumaca, Quezon, plaintiff Vivian Lee Tan and her
husband Silvino Tan, while on board a motorcycle
with [P]late No. DA-5480 driven by the latter, and
a Metro Bus with [P]late No. NXR-262 driven by
Margarito Avila, were involved in an accident;
2. As a result of the accident, Silvino Tan died on
the spot while plaintiff Vivian Lee Tan suffered
physical injuries which necessitated medical
attention and hospitalization;
3. The deceased Silvino Tan is survived by his
wife, plaintiff Vivian Lee Tan and four children,
three of whom are now residents of the United
States; and
4. Defendant Margarito Avila is an employee of
defendant Philippine Hawk.6
The parties also agreed on the following issues:
1. Whether or not the proximate cause of the
accident causing physical injuries upon the
plaintiff Vivian Lee Tan and resulting in the death
of the latters husband was the recklessness and
negligence of Margarito Avila or the deceased
Silvino Tan; and
2. Whether or not defendant Philippine Hawk
Transport Corporation exercised the diligence of a
good father of the family in the selection and
supervision of its driver Margarito Avila.7
Respondent testified that on March 17, 1991, she was
riding on their motorcycle in tandem with her husband,

who was on the wheel, at a place after a Caltex gasoline

station in Barangay Buensoceso, Gumaca, Quezon on the
way to Lopez, Quezon. They came from the Pasumbal
Machine Shop, where they inquired about the repair of
their tanker. They were on a stop position at the side of
the highway; and when they were about to make a turn,
she saw a bus running at fast speed coming toward them,
and then the bus hit a jeep parked on the roadside, and
their motorcycle as well. She lost consciousness and was
brought to the hospital in Gumaca, Quezon, where she
was confined for a week. She was later transferred to St.
Lukes Hospital in Quezon City, Manila. She suffered a
fracture on her left chest, her left arm became swollen,
she felt pain in her bones, and had high blood pressure.8
Respondents husband died due to the vehicular accident.
The immediate cause of his death was massive cerebral
hemorrhage.9
Respondent further testified that her husband was
leasing10 and operating a Caltex gasoline station in
Gumaca, Quezon that yielded one million pesos a year in
revenue. They also had a copra business, which gave
them an income of P3,000.00 a month or P36,000.00 a
year.11
Ernest Ovial, the driver of the passenger jeep involved in
the accident, testified that in the afternoon of March 17,
1991, his jeep was parked on the left side of the highway
near the Pasumbal Machine Shop. He did not notice the
motorcycle before the accident. But he saw the bus
dragging the motorcycle along the highway, and then the
bus bumped his jeep and sped away.12
For the defense, Margarito Avila, the driver of petitioners
bus, testified that on March 17, 1999, at about 4:30 p.m.,
he was driving his bus at 60 kilometers per hour on the
Maharlika Highway. When they were at Barangay
Buensoceso, Gumaca, Quezon, a motorcycle ran from his
left side of the highway, and as the bus came near, the
motorcycle crossed the path of the bus, and so he turned
the bus to the right. He heard a loud banging sound. From
his side mirror, he saw that the motorcycle turned turtle
("bumaliktad"). He did not stop to help out of fear for his
life, but drove on and surrendered to the police. He denied
that he bumped the motorcycle.13
Avila further testified that he had previously been involved
in sideswiping incidents, but he forgot how many times. 14
Rodolfo Ilagan, the bus conductor, testified that the
motorcycle bumped the left side of the bus that was
running at 40 kilometers per hour.15
Domingo S. Sisperes, operations officer of petitioner,
testified that, like their other drivers, Avila was subjected
to and passed the following requirements:
(1) Submission of NBI clearance;
(2) Certification from his previous employer that
he had no bad record;
(3) Physical examination to determine his fitness
to drive;
(4) Test of his driving ability, particularly his
defensive skill; and
(5) Review of his driving skill every six months.16
Efren Delantar, a Barangay Kagawad in Buensoceso,
Gumaca, Quezon, testified that the bus was running on
the highway on a straight path when a motorcycle, with a
woman behind its driver, suddenly emerged from the left
side of the road from a machine shop. The motorcycle
crossed the highway in a zigzag manner and bumped the
side of the bus.17
In its Decision dated March 16, 2001, the trial court
rendered judgment against petitioner and defendant
Margarito Avila, the dispositive portion of which reads:
ACCORDINGLY, MARGARITO AVILA is adjudged guilty of
simple negligence, and judgment is hereby rendered in

favor of the plaintiff Vivian Lee Tan and h[er] husbands

heirs ordering the defendants Philippine Hawk Corporation
and Margarito Avila to pay them jointly and solidarily the
sum of P745,575.00 representing loss of earnings and
actual damages plus P50,000.00 as moral damages.18
The trial court found that before the collision, the
motorcycle was on the left side of the road, just as the
passenger jeep was. Prior to the accident, the motorcycle
was in a running position moving toward the right side of
the highway. The trial court agreed with the bus driver
that the motorcycle was moving ahead of the bus from
the left side of the road toward the right side of the road,
but disagreed that the motorcycle crossed the path of the
bus while the bus was running on the right side of the
road.19
The trial court held that if the bus were on the right side of
the highway, and Margarito Avila turned his bus to the
right in an attempt to avoid hitting the motorcyle, then
the bus would not have hit the passenger jeep, which was
then parked on the left side of the road. The fact that the
bus also hit the passenger jeep showed that the bus must
have been running from the right lane to the left lane of
the highway, which caused the collision with the
motorcycle and the passenger jeep parked on the left side
of the road. The trial court stated that since Avila saw the
motorcycle before the collision, he should have stepped
on the brakes and slowed down, but he just maintained
his speed and veered to the left.20 The trial court found
Margarito Avila guilty of simple negligence.
The trial court held petitioner bus company liable for
failing to exercise the diligence of a good father of the
family in the selection and supervision of Avila, having
failed to sufficiently inculcate in him discipline and correct
behavior on the road.21
On appeal, the Court of Appeals affirmed the decision of
the trial court with modification in the award of damages.
The dispositive portion of the decision reads:
WHEREFORE, foregoing premises considered, the appeal
is DENIED. The assailed decision dated March 16, 2001 is
hereby AFFIRMED with MODIFICATION. Appellants
Philippine Hawk and Avila are hereby ordered to pay
jointly and severally appellee the following amount:
(a) P168,019.55 as actual damages; (b) P10,000.00 as
temperate damages; (c) P100,000.00 as moral damages;
(d) P590,000.00 as unearned income; and (e)P50,000.00
as civil indemnity.22
Petitioner filed this petition, raising the following issues:
1) The Court of Appeals committed grave abuse
of discretion amounting to lack of jurisdiction in
passing upon an issue, which had not been
raised on appeal, and which had, therefore,
attained finality, in total disregard of the doctrine
laid down by this Court in Abubakar v. Abubakar,
G.R. No. 134622, October 22, 1999.
2) The Court of Appeals committed reversible
error in its finding that the petitioners bus driver
saw the motorcycle of private respondent
executing a U-turn on the highway "about fifteen
(15) meters away" and thereafter held that the
Doctrine of Last Clear was applicable to the
instant case. This was a palpable error for the
simple reason that the aforesaid distance was
the distance of the witness to the bus and not
the distance of the bus to the respondents
motorcycle, as clearly borne out by the records.
3) The Court of Appeals committed reversible
error in awarding damages in total disregard of
the established doctrine laid down in Danao v.
Court of Appeals, 154 SCRA 447 and Viron
Transportation Co., Inc. v. Delos Santos, G.R. No.
138296, November 22, 2000.23

In short, the issues raised by petitioner are: (1) whether or

not negligence may be attributed to petitioners driver,
and whether negligence on his part was the proximate
cause of the accident, resulting in the death of Silvino Tan
and causing physical injuries to respondent; (2) whether
or not petitioner is liable to respondent for damages; and
(3) whether or not the damages awarded by respondent
Court of Appeals are proper.
Petitioner seeks a review of the factual findings of the trial
court, which were sustained by the Court of Appeals, that
petitioners driver was negligent in driving the bus, which
caused physical injuries to respondent and the death of
respondents husband.
The rule is settled that the findings of the trial court,
especially when affirmed by the Court of Appeals, are
conclusive on this Court when supported by the evidence
on record.24 The Court has carefully reviewed the records
of this case, and found no cogent reason to disturb the
findings of the trial court, thus:
The Court agree[s] with the bus driver Margarito that the
motorcycle was moving ahead of the bus towards the
right side from the left side of the road, but disagrees with
him that it crossed the path of the bus while the bus was
running on the right side of the highway.
If the bus were on the right side of the highway and
Margarito turned his bus to the right in an attempt to
avoid hitting it, then the bus would not have hit the
passenger jeep vehicle which was then parked on the left
side of the road. The fact that the bus hit the jeep too,
shows that the bus must have been running to the left
lane of the highway from right to the left, that the collision
between it and the parked jeep and the moving rightways
cycle became inevitable. Besides, Margarito said he saw
the motorcycle before the collision ahead of the bus; that
being so, an extra-cautious public utility driver should
have stepped on his brakes and slowed down. Here, the
bus never slowed down, it simply maintained its highway
speed and veered to the left. This is negligence indeed. 25
Petitioner contends that the Court of Appeals was
mistaken in stating that the bus driver saw respondents
motorcycle "about 15 meters away" before the collision,
because the said distance, as testified to by its witness
Efren Delantar Ong, was Ongs distance from the bus, and
not the distance of the bus from the motorcycle. Petitioner
asserts that this mistaken assumption of the Court of
Appeals made it conclude that the bus driver, Margarito
Avila, had the last clear chance to avoid the accident,
which was the basis for the conclusion that Avila was
guilty of simple negligence.
A review of the records showed that it was petitioners
witness, Efren Delantar Ong, who was about 15 meters
away from the bus when he saw the vehicular
accident.26 Nevertheless, this fact does not affect the
finding of the trial court that petitioners bus driver,
Margarito Avila, was guilty of simple negligence as
affirmed by the appellate court. Foreseeability is the
fundamental test of negligence.27 To be negligent, a
defendant must have acted or failed to act in such a way
that an ordinary reasonable man would have realized that
certain interests of certain persons were unreasonably
subjected to a general but definite class of risks.28
In this case, the bus driver, who was driving on the right
side of the road, already saw the motorcycle on the left
side of the road before the collision. However, he did not
take the necessary precaution to slow down, but drove on
and bumped the motorcycle, and also the passenger jeep
parked on the left side of the road, showing that the bus
was negligent in veering to the left lane, causing it to hit
the motorcycle and the passenger jeep.
Whenever an employees negligence causes damage or
injury to another, there instantly arises a presumption that
the employer failed to exercise the due diligence of a
good father of the family in the selection or supervision of
its employees.29 To avoid liability for a quasi-delict
committed by his employee, an employer must overcome
the presumption by presenting convincing proof that he
exercised the care and diligence of a good father of a
family in the selection and supervision of his employee. 30

The Court upholds the finding of the trial court and the
Court of Appeals that petitioner is liable to respondent,
since it failed to exercise the diligence of a good father of
the family in the selection and supervision of its bus
driver, Margarito Avila, for having failed to sufficiently
inculcate in him discipline and correct behavior on the
road. Indeed, petitioners tests were concentrated on the
ability to drive and physical fitness to do so. It also did not
know that Avila had been previously involved in
sideswiping incidents.
As regards the issue on the damages awarded, petitioner
contends that it was the only one that appealed the
decision of the trial court with respect to the award of
actual and moral damages; hence, the Court of Appeals
erred in awarding other kinds of damages in favor of
respondent, who did not appeal from the trial courts
decision.
Petitioners contention is unmeritorious.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure
provides:
SEC. 8. Questions that may be decided. -- No error which
does not affect the jurisdiction over the subject matter or
the validity of the judgment appealed from or the
proceedings therein will be considered unless stated in
the assignment of errors, or closely related to or
dependent on an assigned error and properly argued in
the brief, save as the court pass upon plain errors and
clerical errors.
Philippine National Bank v. Rabat31 cited the book32 of
Justice Florenz D. Regalado to explain the section above,
thus:
In his book, Mr. Justice Florenz D. Regalado commented on
this section, thus:
1. Sec. 8, which is an amendment of the former
Sec. 7 of this Rule, now includes some substantial
changes in the rules on assignment of errors. The
basic procedural rule is that only errors claimed
and assigned by a party will be considered by the
court, except errors affecting its jurisdiction over
the subject matter. To this exception has now
been added errors affecting the validity of the
judgment appealed from or the proceedings
therein.
Also, even if the error complained of by a party is
not expressly stated in his assignment of errors
but the same is closely related to or dependent
on an assigned error and properly argued in his
brief, such error may now be considered by the
court. These changes are of jurisprudential origin.
2. The procedure in the Supreme Court being
generally the same as that in the Court of
Appeals, unless otherwise indicated (see Secs. 2
and 4, Rule 56), it has been held that the latter is
clothed with ample authority to review matters,
even if they are not assigned as errors on appeal,
if it finds that their consideration is necessary in
arriving at a just decision of the case. Also, an
unassigned error closely related to an error
properly assigned (PCIB vs. CA, et al., L-34931,
Mar. 18, 1988), or upon which the determination
of the question raised by error properly assigned
is dependent, will be considered by the appellate
court notwithstanding the failure to assign it as
error (Ortigas, Jr. vs. Lufthansa German Airlines,
L-28773, June 30, 1975; Soco vs. Militante, et al.,
G.R. No. 58961, June 28, 1983).
It may also be observed that under Sec. 8 of this
Rule, the appellate court is authorized to
consider a plain error, although it was not
specifically assigned by the appellant (Dilag vs.
Heirs of Resurreccion, 76 Phil. 649), otherwise it
would be sacrificing substance for
technicalities.33
In this case for damages based on quasi-delict, the trial
court awarded respondent the sum of P745,575.00,
representing loss of earning capacity (P590,000.00) and

actual damages (P155,575.00 for funeral expenses),

plus P50,000.00 as moral damages. On appeal to the
Court of Appeals, petitioner assigned as error the award of
damages by the trial court on the ground that it was
based merely on suppositions and surmises, not the
admissions made by respondent during the trial.
In its Decision, the Court of Appeals sustained the award
by the trial court for loss of earning capacity of the
deceased Silvino Tan, moral damages for his death, and
actual damages, although the amount of the latter award
was modified.
The indemnity for loss of earning capacity of the deceased
is provided for by Article 2206 of the Civil
Code.34Compensation of this nature is awarded not for loss
of earnings, but for loss of capacity to earn money. 35
As a rule, documentary evidence should be presented to
substantiate the claim for damages for loss of earning
capacity.36 By way of exception, damages for loss of
earning capacity may be awarded despite the absence of
documentary evidence when: (1) the deceased is selfemployed and earning less than the minimum wage under
current labor laws, in which case, judicial notice may be
taken of the fact that in the deceased's line of work no
documentary evidence is available; or (2) the deceased is
employed as a daily wage worker earning less than the
minimum wage under current labor laws.37
In this case, the records show that respondents husband
was leasing and operating a Caltex gasoline station in
Gumaca, Quezon. Respondent testified that her husband
earned an annual income of one million pesos.
Respondent presented in evidence a Certificate of
Creditable Income Tax Withheld at Source for the Year
1990,38which showed that respondents husband earned a
gross income of P950,988.43 in 1990. It is reasonable to
use the Certificate and respondents testimony as bases
for fixing the gross annual income of the deceased at one
million pesos before respondents husband died on March
17, 1999. However, no documentary evidence was
presented regarding the income derived from their copra
business; hence, the testimony of respondent as regards
such income cannot be considered.
In the computation of loss of earning capacity, only net
earnings, not gross earnings, are to be considered; that is,
the total of the earnings less expenses necessary for the
creation of such earnings or income, less living and other
incidental expenses.39 In the absence of documentary
evidence, it is reasonable to peg necessary expenses for
the lease and operation of the gasoline station at 80
percent of the gross income, and peg living expenses at
50 percent of the net income (gross income less
necessary expenses).
In this case, the computation for loss of earning capacity
is as follows:
Life
Expectan
cy
[2/3 (80age at
the time
of death)]

Net
Earnin
g
Capac
ity

Reasonable
and
Necessary
Expenses
(80% of GAI)

[2/3 (8065)]

P1,000,00
0.00

P800,000.00

2/3 (15)

P200,000.
00

P100,000.00(
Living
Expenses)

30/3

P100,000.
00

10

P100,000.
00

= P1,000,00
0.00

Gross
Annual
Income
(GAI)

The Court of Appeals also awarded actual damages for the

expenses incurred in connection with the death, wake,
and interment of respondents husband in the amount
of P154,575.30, and the medical expenses of respondent
in the amount of P168,019.55.

Actual damages must be substantiated by documentary

evidence, such as receipts, in order to prove expenses
incurred as a result of the death of the victim 40 or the
physical injuries sustained by the victim. A review of the
valid receipts submitted in evidence showed that the
funeral and related expenses amounted only
toP114,948.60, while the medical expenses of respondent
amounted only to P12,244.25, yielding a total
ofP127,192.85 in actual damages.
Moreover, the Court of Appeals correctly sustained the
award of moral damages in the amount of P50,000.00 for
the death of respondents husband. Moral damages are
not intended to enrich a plaintiff at the expense of the
defendant.41 They are awarded to allow the plaintiff to
obtain means, diversions or amusements that will serve to
alleviate the moral suffering he/she has undergone due to
the defendants culpable action and must, perforce, be
proportional to the suffering inflicted.42
In addition, the Court of Appeals correctly awarded
temperate damages in the amount of P10,000.00 for the
damage caused on respondents motorcycle. Under Art.
2224 of the Civil Code, temperate damages "may be
recovered when the court finds that some pecuniary loss
has been suffered but its amount cannot, from the nature
of the case, be proved with certainty." The cost of the
repair of the motorcycle was prayed for by respondent in
her Complaint. However, the evidence presented was
merely a job estimate43 of the cost of the motorcycles
repair amounting to P17, 829.00. The Court of Appeals
aptly held that there was no doubt that the damage
caused on the motorcycle was due to the negligence of
petitioners driver. In the absence of competent proof of
the actual damage caused on the motorcycle or the actual
cost of its repair, the award of temperate damages by the
appellate court in the amount of P10,000.00 was
reasonable under the circumstances.44
The Court of Appeals also correctly awarded respondent
moral damages for the physical injuries she sustained due
to the vehicular accident. Under Art. 2219 of the Civil
Code,45 moral damages may be recovered in quasi-delicts
causing physical injuries. However, the award
of P50,000.00 should be reduced to P30,000.00 in
accordance with prevailing jurisprudence.46
Further, the Court of Appeals correctly awarded
respondent civil indemnity for the death of her husband,
which has been fixed by current jurisprudence
at P50,000.00.47 The award is proper under Art. 2206 of
the Civil Code.48
In fine, the Court of Appeals correctly awarded civil
indemnity for the death of respondents husband,
temperate damages, and moral damages for the physical
injuries sustained by respondent in addition to the
damages granted by the trial court to respondent. The
trial court overlooked awarding the additional damages,
which were prayed for by respondent in her Amended
Complaint. The appellate court is clothed with ample
authority to review matters, even if they are not assigned
as errors in the appeal, if it finds that their consideration is
necessary in arriving at a just decision of the case.49
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals dated August 17, 2004 in CA-G.R. CV No.
70860 is hereby AFFIRMED with MODIFICATION. Petitioner
Philippine Hawk Corporation and Margarito Avila are
hereby ordered to pay jointly and severally respondent
Vivian Lee Tan: (a) civil indemnity in the amount of Fifty
Thousand Pesos (P50,000.00); (b) actual damages in the
amount of One Hundred Twenty-Seven Thousand One
Hundred Ninety-Two Pesos and Eighty-Five Centavos
( P127,192.85); (c) moral damages in the amount of
Eighty Thousand Pesos (P80,000.00); (d) indemnity for
loss of earning capacity in the amount of One Million
Pesos (P1,000,000.00); and (e) temperate damages in the
amount of Ten Thousand Pesos (P10,000.00).
Costs against petitioner.
SO ORDERED.

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and
LEONARDO DIONISIO, respondents.
In the early morning of 15 November 1975 at about
1:30 a.m. private respondent Leonardo Dionisio was on
his way home he lived in 1214-B Zamora Street,
Bangkal, Makati from a cocktails-and-dinner meeting
with his boss, the general manager of a marketing
corporation. During the cocktails phase of the evening,
Dionisio had taken "a shot or two" of liquor. Dionisio was
driving his Volkswagen car and had just crossed the
intersection of General Lacuna and General Santos Streets
at Bangkal, Makati, not far from his home, and was
proceeding down General Lacuna Street, when his car
headlights (in his allegation) suddenly failed. He switched
his headlights on "bright" and thereupon he saw a Ford
dump truck looming some 2-1/2 meters away from his car.
The dump truck, owned by and registered in the name of
petitioner Phoenix Construction Inc. ("Phoenix"), was
parked on the right hand side of General Lacuna Street
(i.e., on the right hand side of a person facing in the same
direction toward which Dionisio's car was proceeding),
facing the oncoming traffic. The dump truck was parked
askew (not parallel to the street curb) in such a manner as
to stick out onto the street, partly blocking the way of
oncoming traffic. There were no lights nor any so-called
"early warning" reflector devices set anywhere near the
dump truck, front or rear. The dump truck had earlier that
evening been driven home by petitioner Armando U.
Carbonel, its regular driver, with the permission of his
employer Phoenix, in view of work scheduled to be carried
out early the following morning, Dionisio claimed that he
tried to avoid a collision by swerving his car to the left but
it was too late and his car smashed into the dump truck.
As a result of the collision, Dionisio suffered some physical
injuries including some permanent facial scars, a "nervous
breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court
of First Instance of Pampanga basically claiming that the
legal and proximate cause of his injuries was the negligent
manner in which Carbonel had parked the dump truck
entrusted to him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the
proximate cause of Dionisio's injuries was his own
recklessness in driving fast at the time of the accident,
while under the influence of liquor, without his headlights
on and without a curfew pass. Phoenix also sought to
establish that it had exercised due rare in the selection
and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and
against Phoenix and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally
the sum of P 15,000.00 for hospital bills
and the replacement of the lost
dentures of plaintiff;
(2) To pay plaintiff jointly and severally
the sum of P 1,50,000.-00 as loss of
expected income for plaintiff brought
about the accident in controversy and
which is the result of the negligence of
the defendants;
(3) To pay the plaintiff jointly and
severally the sum of P 10,000. as moral
damages for the unexpected and
sudden withdrawal of plaintiff from his
lifetime career as a marketing man;
mental anguish, wounded feeling,
serious anxiety, social humiliation,
besmirched reputation, feeling of
economic insecurity, and the untold

sorrows and frustration in life

experienced by plaintiff and his family
since the accident in controversy up to
the present time;
(4) To pay plaintiff jointly and severally
the sum of P 10,000.00 as damages for
the wanton disregard of defendants to
settle amicably this case with the
plaintiff before the filing of this case in
court for a smaller amount.
(5) To pay the plaintiff jointly and
severally the sum of P 4,500.00 due as
and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate
Appellate Court. That court in CA-G.R. No. 65476 affirmed
the decision of the trial court but modified the award of
damages to the following extent:
1. The award of
P15,000.00 as
compensatory
damages was reduced
to P6,460.71, the
latter being the only
amount that the
appellate court found
the plaintiff to have
proved as actually
sustained by him;
2. The award of
P150,000.00 as loss of
expected income was
reduced
to P100,000.00,basical
ly because Dionisio
had voluntarily
resigned his job such
that, in the opinion of
the appellate court,
his loss of income
"was not solely
attributable to the
accident in question;"
and
3. The award of
P100,000.00 as moral
damages was held by
the appellate court as
excessive and
unconscionable and
hence reduced
to P50,000.00.
The award
of P10,000.00 as
exemplary damages
and P4,500.00 as
attorney's fees and
costs remained
untouched.
This decision of the Intermediate Appellate Court is now
before us on a petition for review.
Both the trial court and the appellate court had made
fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General Lacuna
Street on the basis of which both courts drew the
inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this negligence
was the proximate cause of the accident and Dionisio's
injuries. We note, however, that both courts failed to pass
upon the defense raised by Carbonel and Phoenix that the
true legal and proximate cause of the accident was not
the way in which the dump truck had been parked but

rather the reckless way in which Dionisio had driven his

car that night when he smashed into the dump truck. The
Intermediate Appellate Court in its questioned decision
casually conceded that Dionisio was "in some way,
negligent" but apparently failed to see the relevance of
Dionisio's negligence and made no further mention of it.
We have examined the record both before the trial court
and the Intermediate Appellate Court and we find that
both parties had placed into the record sufficient evidence
on the basis of which the trial court and the appellate
court could have and should have made findings of fact
relating to the alleged reckless manner in which Dionisio
drove his car that night. The petitioners Phoenix and
Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that
negligence was merely a "passive and static condition"
and that private respondent Dionisio's recklessness
constituted an intervening, efficient cause determinative
of the accident and the injuries he sustained. The need to
administer substantial justice as between the parties in
this case, without having to remand it back to the trial
court after eleven years, compels us to address directly
the contention put forward by the petitioners and to
examine for ourselves the record pertaining to Dionisio's
alleged negligence which must bear upon the liability, or
extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into:
(a) whether or not private respondent Dionisio had a
curfew pass valid and effective for that eventful night; (b)
whether Dionisio was driving fast or speeding just before
the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact
with the dump truck or whether those headlights
accidentally malfunctioned moments before the collision;
and (d) whether Dionisio was intoxicated at the time of
the accident.
As to the first issue relating to the curfew pass, it is clear
that no curfew pass was found on the person of Dionisio
immediately after the accident nor was any found in his
car. Phoenix's evidence here consisted of the testimony of
Patrolman Cuyno who had taken Dionisio, unconscious, to
the Makati Medical Center for emergency treatment
immediately after the accident. At the Makati Medical
Center, a nurse took off Dionisio's clothes and examined
them along with the contents of pockets together with
Patrolman Cuyno. 1 Private respondent Dionisio was not
able to produce any curfew pass during the trial. Instead,
he offered the explanation that his family may have
misplaced his curfew pass. He also offered a certification
(dated two years after the accident) issued by one Major
Benjamin N. Libarnes of the Zone Integrated Police
Intelligence Unit of Camp Olivas, San Fernando,
Pampanga, which was said to have authority to issue
curfew passes for Pampanga and Metro Manila. This
certification was to the effect that private respondent
Dionisio had a valid curfew pass. This certification did not,
however, specify any pass serial number or date or period
of effectivity of the supposed curfew pass. We find that
private respondent Dionisio was unable to prove
possession of a valid curfew pass during the night of the
accident and that the preponderance of evidence shows
that he did not have such a pass during that night. The
relevance of possession or non-possession of a curfew
pass that night lies in the light it tends to shed on the
other related issues: whether Dionisio was speeding home
and whether he had indeed purposely put out his
headlights before the accident, in order to avoid detection
and possibly arrest by the police in the nearby police
station for travelling after the onset of curfew without a
valid curfew pass.
On the second issue whether or not Dionisio was
speeding home that night both the trial court and the
appellate court were completely silent.
The defendants in the trial court introduced the testimony
of Patrolman Cuyno who was at the scene of the accident
almost immediately after it occurred, the police station
where he was based being barely 200 meters away.
Patrolman Cuyno testified that people who had gathered
at the scene of the accident told him that Dionisio's car
was "moving fast" and did not have its headlights

on. 2 Dionisio, on the other hand, claimed that he was

travelling at a moderate speed at 30 kilometers per hour
and had just crossed the intersection of General Santos
and General Lacuna Streets and had started to accelerate
when his headlights failed just before the collision took
place. 3
Private respondent Dionisio asserts that Patrolman
Cuyno's testimony was hearsay and did not fag within any
of the recognized exceptions to the hearsay rule since the
facts he testified to were not acquired by him through
official information and had not been given by the
informants pursuant to any duty to do so. Private
respondent's objection fails to take account of the fact
that the testimony of Patrolman Cuyno is admissible not
under the official records exception to the hearsay
rule 4 but rather as part of the res gestae. 5 Testimonial
evidence under this exception to the hearsay rule consists
of excited utterances made on the occasion of an
occurrence or event sufficiently startling in nature so as to
render inoperative the normal reflective thought
processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and not
the result of reflective thought. 6
We think that an automobile speeding down a street and
suddenly smashing into a stationary object in the dead of
night is a sufficiently startling event as to evoke
spontaneous, rather than reflective, reactions from
observers who happened to be around at that time. The
testimony of Patrolman Cuyno was therefore admissible as
part of the res gestae and should have been considered
by the trial court. Clearly, substantial weight should have
been ascribed to such testimony, even though it did not,
as it could not, have purported to describe quantitatively
the precise velocity at winch Dionisio was travelling just
before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned
off his headlights, or whether his headlights accidentally
malfunctioned, just moments before the accident. The
Intermediate Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed the
intersection but was non-committal as to why they did so.
It is the petitioners' contention that Dionisio purposely
shut off his headlights even before he reached the
intersection so as not to be detected by the police in the
police precinct which he (being a resident in the area)
knew was not far away from the intersection. We believe
that the petitioners' theory is a more credible explanation
than that offered by private respondent Dionisio i.e.,
that he had his headlights on but that, at the crucial
moment, these had in some mysterious if convenient way
malfunctioned and gone off, although he succeeded in
switching his lights on again at "bright" split seconds
before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was
intoxicated at the time of the accident. The evidence here
consisted of the testimony of Patrolman Cuyno to the
effect that private respondent Dionisio smelled of liquor at
the time he was taken from his smashed car and brought
to the Makati Medical Center in an unconscious
condition. 7 This testimony has to be taken in conjunction
with the admission of Dionisio that he had taken "a shot or
two" of liquor before dinner with his boss that night. We
do not believe that this evidence is sufficient to show that
Dionisio was so heavily under the influence of liquor as to
constitute his driving a motor vehicle per se an act of
reckless imprudence. 8There simply is not enough
evidence to show how much liquor he had in fact taken
and the effects of that upon his physical faculties or upon
his judgment or mental alertness. We are also aware that
"one shot or two" of hard liquor may affect different
people differently.
The conclusion we draw from the factual circumstances
outlined above is that private respondent Dionisio was
negligent the night of the accident. He was hurrying home
that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the
intersection of General Lacuna and General Santos Streets
and thus did not see the dump truck that was parked
askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and

the Intermediate Appellate Court that the legal and
proximate cause of the accident and of Dionisio's injuries
was the wrongful or negligent manner in which the
dump truck was parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's negligence on
the one hand and the accident and respondent's injuries
on the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck
was a natural and foreseeable consequence of the truck
driver's negligence.
The petitioners, however, urge that the truck driver's
negligence was merely a "passive and static condition"
and that private respondent Dionisio's negligence was an
"efficient intervening cause and that consequently
Dionisio's negligence must be regarded as the legal and
proximate cause of the accident rather than the earlier
negligence of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of the older
cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly, that
even in the United States, the distinctions between
"cause" and "condition" which the 'petitioners would have
us adopt have already been "almost entirely discredited."
Professors and Keeton make this quite clear:
Cause and condition. Many courts have
sought to distinguish between the active
"cause" of the harm and the existing
"conditions" upon which that cause
operated. If the defendant has created
only a passive static condition which
made the damage possible, the
defendant is said not to be liable. But so
far as the fact of causation is
concerned, in the sense of necessary
antecedents which have played an
important part in producing the result it
is quite impossible to distinguish
between active forces and passive
situations, particularly since, as is
invariably the case, the latter are the
result of other active forces which have
gone before. The defendant who spills
gasoline about the premises creates a
"condition," but the act may be culpable
because of the danger of fire. When a
spark ignites the gasoline, the condition
has done quite as much to bring about
the fire as the spark; and since that is
the very risk which the defendant has
created, the defendant will not escape
responsibility. Even the lapse of a
considerable time during which the
"condition" remains static will not
necessarily affect liability; one who digs
a trench in the highway may still be
liable to another who fans into it a
month afterward. "Cause" and
"condition" still find occasional mention
in the decisions; but the distinction is
now almost entirely discredited. So far
as it has any validity at all, it must refer
to the type of case where the forces set
in operation by the defendant have
come to rest in a position of apparent
safety, and some new force
intervenes. But even in such cases, it is
not the distinction between "cause" and
"condition" which is important but the
nature of the risk and the character of
the intervening cause. 9
We believe, secondly, that the truck driver's negligence
far from being a "passive and static condition" was rather
an indispensable and efficient cause. The collision
between the dump truck and the private respondent's car
would in an probability not have occurred had the dump
truck not been parked askew without any warning lights or
reflector devices. The improper parking of the dump truck
created an unreasonable risk of injury for anyone driving
down General Lacuna Street and for having so created

this risk, the truck driver must be held responsible. In our

view, Dionisio's negligence, although later in point of time
than the truck driver's negligence and therefore closer to
the accident, was not an efficient intervening or
independent cause. What the Petitioners describe as an
"intervening cause" was no more than a foreseeable
consequent manner which the truck driver had parked the
dump truck. In other words, the petitioner truck driver
owed a duty to private respondent Dionisio and others
similarly situated not to impose upon them the very risk
the truck driver had created. Dionisio's negligence was
not of an independent and overpowering nature as to cut,
as it were, the chain of causation in fact between the
improper parking of the dump truck and the accident, nor
to sever the juris vinculum of liability. It is helpful to quote
once more from Professor and Keeton:
Foreseeable Intervening Causes. If the
intervening cause is one which in
ordinary human experience is
reasonably to be anticipated or one
which the defendant has reason to
anticipate under the particular
circumstances, the defendant may be
negligence among other reasons,
because of failure to guard against it; or
the defendant may be negligent only for
that reason. Thus one who sets a fire
may be required to foresee that an
ordinary, usual and customary wind
arising later wig spread it beyond the
defendant's own property, and therefore
to take precautions to prevent that
event. The person who leaves the
combustible or explosive material
exposed in a public place may foresee
the risk of fire from some independent
source. ... In all of these cases there is
an intervening cause combining with
the defendant's conduct to produce the
result and in each case the defendant's
negligence consists in failure to protect
the plaintiff against that very risk.
Obviously the defendant cannot be
relieved from liability by the fact that
the risk or a substantial and important
part of the risk, to which the defendant
has subjected the plaintiff has indeed
come to pass. Foreseeable intervening
forces are within the scope original risk,
and hence of the defendant's
negligence. The courts are quite
generally agreed that intervening
causes which fall fairly in this category
will not supersede the defendant's
responsibility.
Thus it has been held that a defendant
will be required to anticipate the usual
weather of the vicinity, including all
ordinary forces of nature such as usual
wind or rain, or snow or frost or fog or
even lightning; that one who leaves an
obstruction on the road or a railroad
track should foresee that a vehicle or a
train will run into it; ...
The risk created by the defendant may
include the intervention of the
foreseeable negligence of others. ...
[The standard of reasonable conduct
may require the defendant to protect
the plaintiff against 'that occasional
negligence which is one of the ordinary
incidents of human life, and therefore to
be anticipated.' Thus, a defendant who
blocks the sidewalk and forces the
plaintiff to walk in a street where the
plaintiff will be exposed to the risks of
heavy traffic becomes liable when the
plaintiff is run down by a car, even
though the car is negligently driven; and
one who parks an automobile on the

highway without lights at night is not

relieved of responsibility when another
negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was
"only contributory," that the "immediate and proximate
cause" of the injury remained the truck driver's "lack of
due care" and that consequently respondent Dionisio may
recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the
Philippines).
Petitioners also ask us to apply what they refer to as the
"last clear chance" doctrine. The theory here of petitioners
is that while the petitioner truck driver was negligent,
private respondent Dionisio had the "last clear chance" of
avoiding the accident and hence his injuries, and that
Dionisio having failed to take that "last clear chance" must
bear his own injuries alone. The last clear chance doctrine
of the common law was imported into our jurisdiction
by Picart vs. Smith 11 but it is a matter for debate
whether, or to what extent, it has found its way into the
Civil Code of the Philippines. The historical function of that
doctrine in the common law was to mitigate the harshness
of another common law doctrine or rule that of
contributory negligence. 12 The common law rule of
contributory negligence prevented any recovery at all by
a plaintiff who was also negligent, even if the plaintiff's
negligence was relatively minor as compared with the
wrongful act or omission of the defendant. 13 The
common law notion of last clear chance permitted courts
to grant recovery to a plaintiff who had also been
negligent provided that the defendant had the last clear
chance to avoid the casualty and failed to do
so. 14 Accordingly, it is difficult to see what role, if any,
the common law last clear chance doctrine has to play in
a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery by
the plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance"
that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil law
jurisdiction like ours? We do not believe so. Under Article
2179, the task of a court, in technical terms, is to
determine whose negligence the plaintiff's or the
defendant's was the legal or proximate cause of the
injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem
to imply by the use of terms like "last" or "intervening" or
"immediate." The relative location in the continuum of
time of the plaintiff's and the defendant's negligent acts
or omissions, is only one of the relevant factors that may
be taken into account. Of more fundamental importance
are the nature of the negligent act or omission of each
party and the character and gravity of the risks created by
such act or omission for the rest of the community. The
petitioners urge that the truck driver (and therefore his
employer) should be absolved from responsibility for his
own prior negligence because the unfortunate plaintiff
failed to act with that increased diligence which had
become necessary to avoid the peril precisely created by
the truck driver's own wrongful act or omission. To accept
this proposition is to come too close to wiping out the
fundamental principle of law that a man must respond for
the forseeable consequences of his own negligent act or
omission. Our law on quasi-delicts seeks to reduce the
risks and burdens of living in society and to allocate them
among the members of society. To accept the petitioners'
pro-position must tend to weaken the very bonds of
society.
Petitioner Carbonel's proven negligence creates a
presumption of negligence on the part of his employer
Phoenix16 in supervising its employees properly and
adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not able
to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver to
bring the dump truck to his home whenever there was
work to be done early the following morning, when
coupled with the failure to show any effort on the part of
Phoenix to supervise the manner in which the dump truck

is parked when away from company premises, is an

affirmative showing of culpa in vigilando on the part of
Phoenix.
Turning to the award of damages and taking into account
the comparative negligence of private respondent Dionisio
on one hand and petitioners Carbonel and Phoenix upon
the other hand, 17 we believe that the demands of
substantial justice are satisfied by allocating most of the
damages on a 20-80 ratio. Thus, 20% of the damages
awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and
P4,500.00 as attorney's fees and costs, shall be borne by
private respondent Dionisio; only the balance of 80%
needs to be paid by petitioners Carbonel and Phoenix who
shall be solidarity liable therefor to the former. The award

of exemplary damages and attorney's fees and costs shall

be borne exclusively by the petitioners. Phoenix is of
course entitled to reimbursement from Carbonel. 18 We
see no sufficient reason for disturbing the reduced award
of damages made by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate
court is modified by reducing the aggregate amount of
compensatory damages, loss of expected income and
moral damages private respondent Dionisio is entitled to
by 20% of such amount. Costs against the petitioners.
SO ORDERED.